Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Subject_2 I sat in the Outer-House this week.

Rory Mackenzie
v.
The Earl of Marchmont

Date: 16 December 1704

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Mr Rory Mackenzie, secretary to the African company, raises a process for wrongous imprisonment against the Earl of Marchmont, late Lord Chancellor, as subscriber of the warrant for his commitment, Sir Gilbert Elliot, clerk, for giving out the extract, and Sir Patrick Johnston, then provost, for ordering the keepers of the tolbooth to receive him; libelling, That, on the 20th of March 1701, the Privy Council having apprehended Thomson and Auchmuty for printing a copperplate reflecting on some of the members of Parliament, and suspecting the said Mr Rory accessory thereto, they committed him to close prison; and he having applied by bill the next day, and offered bail to appear and abide his trial, the same was laid aside, and he kept in prison for twelve days thereafter; contrary to the express tenour of that excellent law of Habeas Corpus, for personal liberty, in 1701, requiring a written subscribed information to precede the commitment, and the mittimus to bear the special cause; whereas here there was no previous subscribed information, and the warrant was made general, for wicked and pernicious practices against the government; and therefore craved they might be condemned in £2000 of fine, imposed by the Act, for imprisoning an unlanded gentleman, and for £33 half a merk for each day he was detained after his offering bail; and to be incapable of all public trust.

Alleged, 1mo,—No process against Marchmont; because, 1mo, All parties concerned and having interest are not called, viz. the members of Privy Council met at that sederunt, where his imprisonment was ordered; 2do, What he did was as president of the court, et ratione officii, to sign their orders; and so cannot be personally liable. And as for Sir Gilbert Elliot, he alleged he was but a servant, and bound to obey their orders, and not to dispute them; and there is no clause of the Act comprehending him.

Answered,—The Earl being convened on a delinquency, and for breach and violation of a law, all the actors were liable in solidam; and the pursuer was not to inquire who were present at the quorum, but is only concerned to notice who signed his unjust commitment. And as to Sir Gilbert, the Act bears not only the judge and officer of the law to be liable in the punishment, but also all others subscribing the same; under which class he must certainly fall: and there was reason to make it so, that the superior judges, having power to imprison, might meet with no obedience from the subordinate officers, who finding themselves liable, and that the command given would not excuse them, it was the most effectual check could be fallen on to prevent such oppression by wrongous imprisonment, else this just and necessary Act may be easily eluded and frustrated.

Mr Rory gave in a declinature against my Lord Cesnock, who declined himself in his father's cause; but it was contended, he might sit and vote in so far as concerned Sir Gilbert's part of the process. Others said there was a contingent tia causœ in both. Then he declined Lauderdale, Halcraig, and Crossrigg, as being three of the sederunt present when he was sent to prison.

The Lords, before answer, ordained an extract of that day's sederunt to be produced, and granted diligence against the clerk of the council for that effect. Which being signified to the Lords of Secret Council, they conceived this to be an encroachment upon them, a sovereign and coordinate court, nowise subject to the Session; and therefore discharged their clerk to give out any such extract. And some of them said, they were not to answer for their actings to any but the Queen and Parliament; and if any judged themselves lesed by their wrongous imprisoning them, they ought to seek redress only before themselves. Others thought this a bad remedy, and that the Act of Parliament was made to prevent the arbitrary power of the Council; and, if these might not be pursued before the Session, then the valuable Act might be little worth. Some observed, that the Parliament where that Act was made, rising on the 2d of February, and the Acts not being published and proclaimed for some days after, there were scarce forty days run when his commitment was ordered on the 20th of March, and so the Act did not oblige nor bind. But the interval of time relates to the other lieges, but not to the makers of the Act, who can never pretend ignorance.

It was alleged that the crime specified in this mittimus being capital, his offering of bail was justly refused, it not being a bailable crime. Others thought the warrant too general, for pernicious practices, and that they should condescend more specially, else the offer of bail may be always eluded by inserting a capital crime. And as he was found altogether innocent, and the suspicion against him groundless, so the Lords of Justiciary, on the trial of Thomson and Auchmuty, the principal actors, found them only liable to an arbitrary punishment, and that the crime was nowise in its nature capital.

Vol. II. Page 247.