An act of in demnity was sustained to assoilzie from fines imposed by the heritable bailie of a bailiary, though such fines were his property and private right.
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John Blair, Bailie-depute of the bailiery of Cunningham, pursues the merchants and other inhabitants of the town of Kilmarnock, for using false and double weights, and other penal statutes; and on their contumacy in not appearing, he fines each of them in L. 50 Scots; and then for their light weights he amerciates them in great sums, extending to 40 or 50,000 merks. They suspended on these reasons, That the magistrates had prevened his jurisdiction, and sentenced them for the same crime; and so there was no room for his convening or sentencing them. 2do, It being criminal, they neither got a full double of their libel, nor of the assissers and witnesses names, as ought to be in such trials. 3tio, His fine was most exorbitant, (esto they were guilty,) for absence cannot exceed L. 10 Scots, as was found 6th December 1628, Crichton against Wilson, voce Jurisdiction, (Inferior Court); and 22d July 1631, Douglas against Kellie, Ibidem; neither did he seek to adjust their weights and measures to the standard of Lanark, but to that of Irvine, which is no rule at all.—Answered to the first, The Bailie's procedure with their neighbours was a mere contrivance and collusion to palliate their guilt, and should never defend them; and to the second, he did not proceed modo criminali, but civiliter, for rectifying the abuse in their measures; and to the third, he remitted the modification to the Lords.—Replied, He could not repel the Bailie's res judicata, for one inferior judge cannot reduce the sentence of another, except only the Commissaries of Edinburgh, and the Admiral; for par in parem non habet imperium.—The Lords found the procedure exorbitant, and therefore turned the decreet into a libel.—Then the defenders alleged absolvitor, for all transgressions preceding March 1702, because remitted by the Queen's indemnity then published, being neither paid nor transacted before that time.—Answered, No crimes are pardoned, but such as need a remission under the Great Seal. 2do, Thefts, robberies, and immoralities are expressly excepted from the indemnity; and false weights and measures are theft in the sense and meaning of the eighth command; and the Scriptures declare diverse weights and measures to be an abomination to the Lord. 3tio, He is the Earl of Eglinton's depute, who being heritable Bailie, these emoluments are his property, for which he makes an æque in Exchequer yearly; so that indemnities can never be extended to take away private parties’ rights.—Replied, The indemnity makes no such distinction whether the crime need a special remission or not; and if crimes be brought under the notion of immoralities, and so be excepted from the indemnity, then all crimes are immoral, and against some law of God; but the indemnity is most comprehensive, and to be favourably interpreted, et rapienda est occasio to stop the covetous oppression of these inferior judges; and even the fines upon importers of prohibited goods, when pursued by the managers of the manufactories, were found pardoned by the indemnity; because their private interest being only consequential to the public law, the principal being discharged and pardoned, made the accessory to run the same fate; that power being necessary in the regulations and measures of government for quieting the minds of the people.——The Lords inclined to think this case fell under the indemnity, especially the decreet for the fines being now turned to a libel; but they did not determine it, but gave their opinion to the Ordinary in the cause to hear them farther thereupon; and the indemnity was afterwards sustained to assoilzie from the fines.
Fol. Dic. v. 1. p. 461. Fountainhall, v. 2. p. 215.
