[1704] Mor 17065
Subject_1 WRONGOUS IMPRISONMENT.
Date: Peacock
v.
John Allan, and the Other Magistrates of Stirling
5 January 1704
Case No.No. 2.
Upon the statute 1701.
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Mr. Adam, formerly Episcopal Minister at Morebattle near Kelso, being deposed by the church-judicatures, ratified by the commission of the General Assembly, on a call by some of his own persuasion in Stirling, sets up a meeting-house there; and in the end of August last while he was preaching, Bailie Allan and others come, and interrupting him, carry him away to prison for intruding into their church, where there was no vacancy, conform to the 22d act of Parliament 1695, especially he not being qualified by taking the paths to the Queen, and being under the church-censure of deprivation. The said Mr. Adam being, after some days' incarceration, liberated by order from the chancellor, raises a process against the Magistrates for wrongous imprisonment, founded on the late famous act of Parliament 1701, libelling £2000 as the penalty for a gentleman, and £33 half a merk per diem so long as he was detained, after his offering bail, and taking instruments against them, that there was no subscribed written information exhibited against him, nor a written warrant containing the cause of his commitment, as by the said act is required. Answered, Mr. Peacock being deposed by the church, and not having taken the oaths, his attempting to preach in Stirling, where there was no vacancy, was a public and open violation and transgression of the laws, and being taken in flagrante delicto by the Magistrate, he needed no subscribed information; for whom had he to inform but himself? 2do, He was not in the case
of the act of Parliament, which specially excepts those who are disobedient and contumacious to church-censures as he was, and allows their imprisonment as before the act; and by the 23d act of Parliament 1693, all Judges and Magistrates are commanded to give assistance in making church-sentences effectual; 3tio, The refusing of a bail is denied, but only he took twenty-four hours, (as the act allows), to advise on the penalty; and as to the second offer, there were names indeed given in to him, but they were neither present, nor any subscribed bond of caution offered to him, as the act requires. Replied, As to the sentence of deprivation, he had an appeal yet depending before the Assembly, (only these appeals do not stop execution, and when not insisted on are reputed deserted); and as to his being unqualified, he had taken the oaths to King William and was ready to do the same to Queen Anne; and that noble and excellent law being the great charter of our personal liberty, must not be diminished by quibbles, for it was never intended that an Episcopal Minister may be imprisoned summarily for preaching the Gospel peaceably, neither ought it to be ranked as a crime; and the act was calculated to bridle the lawless and arbitrary power of rash Magistrates in casting people into prison at their pleasure; and therefore he should have given a warrant, mentioning the cause to the jailor, and the double of it to the party incarcarated; neither ought he to have delayed or refused the bail, seeing under that pretence, one may, in defraud of that good law, keep free subjects long enough in prison. The Lords found there was no necessity of a written information in this case, seeing the Bailie himself came to the place where he was contravening the acts of Parliament, and the act of his own deprivation; and that being under church-censures, he was in the exception of the act of Parliament; and that a subscribed bond of cautionry not being offered, the Bailie committed no fault in refusing to set him at liberty; and therefore assoilzied them from Mr. Peacock's process, which is the first raised upon that new act of Parliament. Mr. Peacock having given a bill against this interlocutor, reclaiming on sundry grounds of law; and the Lords, by plurality, having refused his bill, and adhered to the former interlocutor, he gave in his appeal for redress to the Parliament which was admitted conform to that article of the claim of right relating thereto.
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