Hobbiefter — Memorial, 18 Feb 1767

February 18. 1767. A D D I T I O N A L M E M O R I A L F O R Mr Mrofir nfste of hoGGtr-pr f l Ministe r of the Go- spel at;Addrp; Mr;svtc;sefa,Perl Advocate, Procurator for the Church of uCopesdc; and o- thers. M HE memorialists, in setting forth the historyT o f the law of Scotland “ with respect to the ci- vil magistrate giving assistance, or granting the compulsitors of the law, for making the censures and sentences of the church-judicatories to be obeyed, or otherways effectual," brought it down to the 1693, act 22d. It shall only further be added on this head, That the granting o f such assistance or compulsitors has been there­ after commonly granted, when applied for, as appears from the 6th act 1701, f or preventing wrongous imprisonment, and against undue delays in trials; an act the most important and valuable in the statute-book; Yet it is an exception, and it is declared, that this act is no ways to be extended, and that it shall be without prejudice to the civil magis­ trate, as formerly,to imprison parties disobedint and contuma­ cious to church censures. In an act so anxiously planned for securitv of personal liberty, the above exception would not have made its appearance, had it not uniformly obtained in practice for the civil magistrate to interpose, and give the aid of civil authority, as the act 1693 prescribes. But But it is objected, That the point in issue has been ad­ judged by a decision, reported by Dirleton, 12th February 1675. “ The presbytery of Dunse having by bill desired, that letters of horning may be direct against certain per- sons, who had been cited as witnesses, and did not ap­ pear before them; “ The Lords did demur, in respect letters of horning ought not to be direct, but either by consent of parties, or by warrant o f acts of parliament; as appears by acts of parliament, ordaining horning to be direct upon sheriffs- commissars decreets, and decreets within borough, and admirals decreets." The above decision appears to be proper, ju st, and a- greeable to law. But, with the greatest submisio n, it is apprehended, that it does not apply to the case in hand. The reason of the demur of the Lords is, that horning ought not to be direct, but by consent of party, or by war­ rant of act of parliament; and that it is agreeable to law, very clearly appears from sundry acts of parliament. The ancient form of execution upon decrees, even of the session, was by letters of four forms. This form was te­ dious, and seldom attained the end proposed. Therefore, by act of sederunt 23d March 1582, ratified by the 139th act, parliament 1 584, and afterwards enforced by act of sede­ runt, 9th January 1613; Spot. Pract. p. 149. letters of four forms were laid aside, and a charge of horning on de­ crees substituted in their place, and thereafter, by acts of parliament, extended to the decrees of inferior courts, without the trouble and expence of obtaining a decree of interposition. In this manner does the authority of letters of horning stand, either on the consent of parties, or acts of parliament. But, at same time, it must be observed, that the sole aim and intention of this change of form was directed to this single point, to recover payment of a debt in a more expeditious expeditious and more effectual manner than could be ob­ tained by the letters of four forms. As to every other mat­ ter, the execution of the law was left untouched, and, with some alterations, continues, if not the same, at least it proceeds upon the same principle at this day. At no period of the law were parties or witnesses brought into Court by summary charges of horning, under the pain of rebellion. Such charges were contrary to law; and the escheat did not fall upon disobedience. It was so found, a few years after the institution of the College of Ju stice, in three cases, reported, voce Horning, by Balfour, in February, November, and December 1567; where such charges were found null and reduced, for the reason there given, “ because he that was charged ought and should have been defynt, befoir ony denounciatioun of horning be the Lordis, within the famin sax dayis to compeir, and fould not have bene denuncit rebel, except he had first bene declarit contumax for non-compeirance.'’ It is unnecessary to trace out the antient form of citing or summoning witnesses. It will be sufficient to observe, 1mo, From the institution of the College of Ju stice, it was contrary to form to charge them upon letters of horning. 2do, That such charges were contrary to law, void and null. 3tio, That in the 1675, as at this day, witnesses were cited by authority of letters under the signet, to com­ pear to bear leal and soothfast witnessing. 4to, That the a- bove form universally prevailed in all courts, supreme and inferior; and in all causes, civil or criminal. These matters being premised, a short answer to the a- bove decision, reported by Dirleton, shall humbly be sub- mitted. When the presbytery of Dunse applied for letters of horn­ ing, to compel witnesses to compear before them, their ap­ plication was contrary to law. They were applying for a mode of execution which might have involved witnesses in '. a a forfeiture, by incurring the single and liferent escheat. As it was abhorrent to the genius and principle of law, so it was also a novelty unknown and unheard of in any ju- dicial procedure civil or criminal. The Court therefore wisely demurred, and would not interpone their authority to a measure so manifestly absurd, and contrary to law, as well as inconsistent with the established forms in their own and every other court. ■. 1 The present case stands on quite a different foot. It is agreeable to form; it is founded in the law; and is in the same train with judicial proceedings of this nature in the Court of Session, and other courts of the country. In the 1675, the Court demurred upon an application so ex­ traordinary and unprecedented; this may infer, that in cases usual and accustomed, such as the present, the Lords, did not demur, but granted letters of diligence to supply the defect of ecclesiastical judicatures. And as neither the consent of the witnesses are here necessary, nor does the ci­ tation of witnesses stand singly on the authority of acts of parliament, but is founded in the common law, and in-' deed in the first principles of society, for the furtherance of ju stice, it cannot reasonably be doubted that the Court, in the 1675, would have granted letters of diligence in com­ mon form, if the application by the presbytery of Dunse had been solely confined to them. And it is likewise humbly hoped, that your Lordships will have no difficulty on this point. I n r e s p e c t wherof, &c.r 4 o f i n s t D A V. D A L R Y M P L E ei