tinued to point your gun at him, defiring his lordship again to keep off, or, by God, you would fhoot him: and a fervant, near to the earl, having begged of you, for God's fake, to deliver your gun, you again refused, saying, you had a right to carry a gun; to which lord Eglintoun anfwered, that you might have a right to carry a gun, but not upon his eftate without his liberty; but you ftill perfifted in refufing to deliver your gun; and by ftriking your foot against a small ftone, having fallen upon your back when retiring and keeping your gun pointed at lord Eglintoun, as above defcribed, the muzzle of the gun came thereby to be altered in the direction from lord Eglintoun, and to be pointed near ftraight upwards; and lord Eglintoun, who was only diftant from you two or three yards, having stopped or ftood still upon your falling, you, as foon as you could, recovered yourself, and, refting upon your arm or elbow, aimed or pointed your gun to the faid Alexander earl of Eglintoun, and wickedly and feloniously fired it at him, then ftanding unarmed, fmiling at your accidental fall, and by the fhot he was wounded in the belly in a dreadful manner, the whole lead-fhot in the gun having been thrown into his bowels, of which wound the faid Alexander earl of Eglintoun died that night about twelve o'clock. And you the faid Mungo Campbell, after perpetrating fo cruel, wicked, and barbarous a crime, did immediately run to one of lord Eglintoun's fervants who had brought his gun from his coach, and who was ftanding at fome distance, and endeavoured to wreft the gun from him, but was prevented by the affiftance of another fervant; and when the two fervants were engaged with you defending the gun, and endeavouring to fecure you, the earl, who was then fitting on the ground, called to the fervants to "fecure the 66 man, for he had fhot him, but not to use him ill," or ufed words to that purpose and effect; and upon your being brought near to lord Eglintoun, he faid to yourfelf, "Camp"bell, I would not have fhot you." And you, the faid Mungo Campbell, when carrying from the place where you committed the forefaid crime, to Saltcoats and Irvine, did acknowledge to fundry perfons, that you had wilfully and intentionally fhot the faid Alexander earl of Eglintoun: AND the faid Alexander earl of Eglintoun, when within two or three hours of his death, in giving an account to John Moor, furgeon in Glasgow, who was called to give what affiftance he could in the way of his profeffion, of what had paffed between you and him, did in subsistance say, that you, the faid Mungo Campbell, did take an aim at him, and shot him wilfully, and which account of the matter was given by the faid Alexander earl of Eglintoun with the greatest calmness B 2 calmnefs and compofure; and you, the faid Mungo Campbell, having been brought before Charles Hamilton of Craighlaw, Efquire, a juftice of peace of the county of Air, upon the faid twenty-fourth day of October one thoufand feven hundred and fixty-nine; and thereafter before William Duff, Efquire, Sheriff Depute of the county of Air, upon the twenty-feventh day of the faid month of October, you did voluntarily emit two declarations, which were fubfcribed by you, and will be ufed in evidence against you upon your trial: and, for that purpofe, both declarations fhall be lodged in the hands of the clerk of the court of jufticiary, before which you are to be tried, that you may fee the fame: AT LEAST, at the time and place above defcribed, the faid Alexander carl of Eglintoun was felonioufly murdered, or bereaved of his life, by a wound he received from the fhot of a gun, and of which wound he died in about twelve hours, or fome fort fpace thereafter; and you, the faid Mungo Campbell, was actor, or art and part of the said murder. ALL WHICH, or part thereof, being found proven by the verdict of an affize, before the lord juftice general, juftice clerk, and commiffioners of jufticiary, you ought to be punished with the pains of law, to the terror of others to commit the like in time coming. JA. MONTGOMERY, After reading the indictment, the court obferved, That the indictment fets forth, that the deceased earl received the fhot of which he died upon the fands adjacent to the grounds of Ardroffan; and defired the counfel for the profecutors to explain if they meant the deceased earl received his wound upon the fands of the fea, and within the flood-mark. The lord-advocate admits that the deceafed earl received the fhot of which he died upon the fands of the sea, and within the flood-mark. (Signed) JA. MONTGOMERY, The court thereupon defired to hear counsel on both fides upon this preliminary queftion, Whether or not the court has jurifdiction to try this indictment in the firft inftance? Pro Procurators for the Profecutors. Mr. Alexander Lockhart, adv. Procurators for the Pannel. Parties procurators being heard at great length upon the faid preliminary question, the lord-juftice, clerk, and lords coinmiffioners of jufticiary fuperfede advifing the debate till Friday next the twenty-fecond inftant, at three o'clock in the afternoon in this place; appoint parties procurators to make up minutes thereof, betwixt this and Thursday next at twelve o'clock at noon, to be ingroffed in the record; continue the diet against the faid Mungo Campbell, pannel, and whole other diets of court, till the faid twenty-second inftant, at the hour above-mentioned; ordain parties, witneffes, affizers, and all concerned, then to attend, each under the pains of law; and the pannel in the mean time to be carried back to prifon. Mr. David Rae for the pannel reprefented, That this court has here no jurisdiction, at least in the first inftance, but that the fame does belong to the high court of admiralty. In the infancy of all ftates and governments jurifdiction has been but imperfectly fettled, and its conftitution has only ripened by degrees; but from the earlieft times, and indeed from the very nature of the thing, it has been territorial. The first judges were probably appointed for trying causes of all kinds, but were certainly circumfcribed to a territory, as their authority could reach no further than the bounds of that power from which fuch authority was derived. Afterwards as nations came to be more civilized, and fyftems of laws and governments to be formed, it was found convenient to diftribute jurifdiction among different hands, under the fame head or government. Hence has arisen the diftinction between civil and criminal courts, and between many others that now obtain in different countries; but to all of these has 1 has ftill been affigned a particular territory, within or over which fuch fpecies of jurifdiction may be exercised, and not beyond it. The feudal laws and ufages which have been received to a great degree in the country do more especially limit jurifdiction to particular territories, as witness the jurifdiction of the barons, of lords of regality, of fheriffs, &c. Diftinct from these, though established on the fame principles, has been the jurifdiction of admiral, or courts of admiralty. While commerce and maritime affairs were little attended to, the establishment of fuch a jurifdiction might be overlooked; but when these matters began to be of more importance, it feems to have occurred to the government of every European ftate bordering on the fea, that a separate jurifdiction fhould be established for the cognizance of fuch affairs as either especially related thereto, or as occurred either upon the fea or fhores thereof. Hence the high admiral, was established in France many centuries ago, with a very ample jurisdiction; and upon the fame footing fuch an officer, with equivalent powers, was very early established in Scotland. What was the precife æra of that establishment does not with certainty appear, but it is proved by our ftatutes that it happened before the reign of James V. and that befides the cognizance of civil caufes of a maritime nature, the high admiral of Scotland was vefted with a criminal jurifdiction within a certain territory, that is to say, he was appointed the king's juftice-general, not only upon the high feas, but also in ports and harbours, and in rivers below the first bridges, and on the fea-fhores as far as the highest tide flows, or below the flood-mark, whereby he had undoubted right to cognoce and try all crimes committed within these bounds, as much as the juftice-court or high court of jufticiary had to try crimes committed in the internal part of the kingdom. That fuch a jurifdiction and territory was and is vefted in the admiral cannot be denied, and appears not only from the act 1681, to be afterwards mentioned, but from many authorities long prior to that ftatute, more particularly Welwood, in his Abridgment of the Sea-laws, does, in chap. 2d of his treatise, lay it down as then law, that the admiral of Scotland had the fole criminal jurifdiction within the aforefaid territory, and particularly mentions his right to try "fhedders of other men's "blood on fea or any port or river below the first bridge, "&c." Sir Thomas Craig, lib. iii. tit. 7. § 10. has these words," poftquam vero in mari dominari cœperunt, admi"ralii officium introductum eft cujus de rebus fivi delictis "in mari aut in littere, aut etiam portu geftis aut com "mifis juridictio erat." Sir George Mackenzie likewise, in his Treatise on the Criminal Law, published before the act 1681, in his title of the admiral's jnrifdiction, does expressly fay, "That the lord high admiral and his deputies are, by "the laws of all nations, judges competent to all crimes "committed on fea; and by an unprinted ftatute with us, "the admiral is competent in all controverfies, actions, "and quarrels concerning crimes, faults, and trefpaffes "upon fea, or fo far as the fame flows and ebbs :" and he quotes not only the authority of Welwood, but of Prefident Balfour in his Practicks, title Admiral, and of another Scotfman named King, who wrote upon this fubject. These authorities fhow, that at least two centuries ago, the admiral's jurifdiction in crimes was with us extended to the flood-mark; and what clears and compleats the evidence on this head is the 16th act, 1681, paffed in the third parliament of king Charles II. which ftatutes and declares, That "the faid high-admiral, as he is his majefty's lieutenant and juftice-general upon the feas, and in all ports, harbours, "and creeks of the fame, and upon fresh waters or na"vigable rivers below the first bridges, or within the flood"marks, fo far as the fame does or can at any time extend; "So the faid high admiral hath the fole priviledge and ju"rifdiction in all maritime and fea-faring causes, foreign and domeftick, whether civil or criminal, whatfoever, "within this realm, and over all perfons as they are "concerned in the fame; and prohibits and difcharges all "other judges to meddle with the decifion of any of the "faid caufes in the first inftance, except the great admiral "and his deputes allenarly." And this ample jurifdiction appears from the records of the admiralty court to have been exercised for ages paft, without challenge, under the eye of this and the other fupreme courts of the country. Crimes of every kind, and particularly murder and manflaughter, committed within the admiral's territory, have been openly tried by him; and his fentences, as well capital as others, duly put in execution. And as by the fame ftatute 1681, as well as by former ftatutes, this court of admiralty is exprefsly declared to be a fovereign judi"cature in itself, and of its own nature to import fum66 mary execution;" fo it was a doubt whether its decrees in criminal matters, were even fubject to the review of this high court of jufticiary, till the cafe of Long and Macadam, in the year 1735, when this court received the fentence of the admiral, in a criminal caufe, as flowing from the fame principles upon which the court of feffion 66 are |