Scottish Court of Session Decisions

Subject_1 DECISIONS of THE LORDS OF COUNSEL AND SESSION, reported by SIR JAMES FERGUSON OF KILKERRAN.

James Smith, Chairman in Edinburgh, - Petitioner

Date: 6 March 1755

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A summary application was made to the Court, setting forth that the said James Smith, who was a chairman in Edinburgh, had been apprehended upon a verbal order from one of the bailies of the city, and committed to prison; that application had been made by him for liberation upon bail, which was refused without any cause being assigned; and that two days thereafter he was taken from prison, and delivered over to a party of the military, and by them carried off.

The fact appeared to be, that the petitioner had been laid hold of under the authority of a press-warrant, and that he was put on board a tender at Leith. The petition prayed that the Magistrate might be ordained to give in answers to the petition, and therein to set forth to what party of the military the petitioner was thus delivered over, to what purpose he was so delivered; and if your Lordships think it proper to make it part of said order, that the petitioner shall either be produced at your Lordships' bar, subject to such after orders as your Lordships shall think proper to make, or that he be lodged in some of his Majesty's prisons, there to remain until liberated by due course of law; or to give the petitioner such other relief in the premises as to your Lordships shall seem just.

LordKilkerran gives the following statement of what passed on the Bench at moving this petition.

“The President,—In respect of the present circumstances of the nation, when all know press-warrants are issued,—should we interpose, it were to set ourselves in opposition to the law, which is, that the Admiralty have power to issue press-warrants, which the Privy-Council are bound to support. 2d, A Magistrate not to be complained of summarily; wherefore, he was for finding the complaint incompetent. He added, that the remedy lay in the Privy-Council or Admiralty, but in no court civil or maritime.

“Answered,—This is not a complaint against a press-gang, which, if it were, the above first argument might apply.

“The Lords dismissed the complaint as incompetent.

“From the showing of the petition, it is out of Bailie Stewart's power to stop the order which is already execute. It, therefore, resolves into an action of damages, which is not competent by way of summary complaint.

“I should have no doubt but a summary complaint might be competent to stop the execution of an order which is immediately to be put into execution.”

A second petition was presented by Smith, praying for an alteration of the interlocutor, but it was also refused without answers. Lord Kilkerran says, “After differing much, a motion was made to intimate to the lawyers for the Crown, to set forth whether the petitioner is pressed for the King's service; and the agent for the Crown being present, and averring that he was aboard one of the King's tenders at Leith,—The Lords refused the petition.”