of the Pursuer's there was an aliquis metus and that per impressionem from an person in summo officio constituto whose command in His Letter could not have been disobeyed by the Pursuer without hazard of being constructed a seditious Contemner of Authority so that his acquiescence by taking the 7000 M. imposed upon him was not in the least an Act of his voluntar E. lection but of meer necessity which therefore cannot hinder the restoring him to his Office Likeas 2do The great Example that is given by Baldus in his 142 cons anent the grounds and occasions of just Fear is that of over Lords of Cities their injoyning the Citizens to a mutual Compromission in which Case Compromissum dicitur per metum factum eoquod teneantur parere domino And sicklike Anchoranus is his 299 cons and Fulgos in his 191 cons upon the same subject examplifies the matter thus That a Person being ordered by the Prince to discharge and exoner his Debitor such an Exoneration is revocable Tanquam justo metu facata And that a Person at the Command of the Prince having accepted the Prince's Precept and Order for making payment of an undue Debt and accordingly thereafter making Spontaneus payment the said payment is nevertheless Revockable mortuo Tiranico principe tanquam metu facta And the same Anchoranus in his 159 cons num 4 holds it as a principle quo confessio vel actus factus ex voluntate in casu in quo praecedebat jussus coactio non dicatur ex voluntate sed ex necessitate quia sufficit in principe jubente nocendi potentia And so it is that in this case the Kings Letter preremptorly injoyned the Pursuers submission to the Lords determination And which injunction being previous to his Acceptance of the summ determined And the King that did so injoyne being still on Life and jealous enough of the Contemners of his Commands The Pursuers Acceptance of the sum modified could be no Act of voluntar Acquiescence but the effect of his Majesties awful recommendation and order against which he ought to be reponed And 3tio The instance that is given by Geminus in his 15 cons num 10 11 and Angelus his 378 and 379 cons per tot as the most pregnant ground of Terror to the most constant Spirited Man is solum verbale imperium Regis quod causet justum metum quando Rex consuevit male tractare non obedientes And ita est that in this case the Kings positive Letter is more nor a verbal Mandate and the severities that the Pursuer might have mett with had he not obeyed the same but had endeavoured to keep his place without regard thereto needs not to be questioned Likeas 4to Baldus in his foresaid 142 cons and Angelus in his 215 and 218 cons adduces the Arguments following for inferring an impression or Concussion viz Quando dominus praecepit aliquid subditis ut faciant Item Quando fit compromissum in judicem de re tanquam litigiosa quae non est litigiosa Item Quando compromittens protestatus fuit de impressione Item Quando laudum est iniquum And ita est That in this case the Pursuer was injoyned by the Kings Letter to submit to the Lords notwithstanding there was no contraversie or doubt stated anent the matter of his Office And upon which head the Pursuer did openly and in presence of the Lords protest for a hearing And that a Representation might be made to his Majestie before furder procedure Nevertheless his importunity is rejected and he removed and debarred whereupon he did the next day offer and attempt to go in and take possession of his place till by the interposition of Friends that feared the Event of such a course he was forcibly turned back And the laudum or modification they made being but 7000. Merks which hath been since raised by his Office in one Year was highly unequal Likeas in the parallel case of a parties protesting tho but privately against the impression and constraint put upon him to acquiesce to an unequal transaction the Parliament of Paris did upon the 9 of August 1543 restore him against the said Transaction as Papon in his Collection of Arrests l. 16 arti 3 dec 10 And therefore à fortiori the Pursuers reclaiming and Testification of his Dissent and unjustice that was done to him having been made openly before the Lords and yet all to no purpose is an unanswerable Argument of the impression and Concussion that induced him to accept of the 7000 Merks rather then lose all And therefore in Justice he ought now to be reponed Likeas 5to By all the Arguments adduced by Doctors and Practitioners for demonstrating the continuance and endurance of Impression and Concussion upon a Man it is evident that at the time of the Pursuers accepting of the 7000 m his just dread of the Kings displeasure and fear of utter loss and a farder mischief if he had refused the Money was not over For 1mo Caldas in his 108 cons Natta in his 450 cons num 17 Holds it as a principle that the Impression and Concussion endures quamdiu durat princeps passus metum est in loco ubi princeps Tiranidem potest exercere And the reason rendered by Alexander in his 144 con num 4. Is quia odium quando est irrationabile presumitur continuare nedum in ipso genere sed etiam quoad alia And it a est That K Ch was yet on life the time of accepting of the 7006 Merks that was unequally modified against the Pursuer's will as said is and it is not to be doubted if he had continued in an obstinate not taking of the 7000 Merks but the King at least those who did influence him and impetrate the foresaid Letter from him might have prevailed with him to have done the Pursuer more prejudice 2do Aretinus in his 14 cons num 17 and 18. Menochius 1 cons num 301. Ancheranus in his 299 and 159 cons and Aretinus in his 96 con num 27 sequent Hold it as an principle That in the Case of Impression and Concussion no Deed done by the Party ex intervallo post impressionem factam in reference to the subject matter of the Concusion can import a purgation of the Impression or Freedom of will in the Party so long as the cause and occasion of the Impression lasts and the reason is rendered Quia actus factus ex voluntate dicitur ex necessitate factus quando praecedebat jussus a potente nocendi executio contractus facta per eum qui passus est metum non purgat metum durante causa metus quia is qui vim possus est si ex intervallo ratificaverit censetur potius id fecisse pro suo interesse quamquod voluerit metum purgare sic donare As Bartol also holds ad leg 4 cod de his quae vi c. Where he states the acceptance of
payment be him that sold throw fear to be only quo minus perderet and nowayes for purging or passing from the fear Item quod quando alia causa subesse potest nunquam purgatur meâ—us quia nemo presumitur velle jactare suum quod jactaret si exequendo contractum per impressionem initum amitteret jus suum And ita est That the time of the Pusuers taking the 7000 Merks the cause of the Impression and Concussion was yet extant which did Over-awe him and his own Interest did induce him to take the 7000 Merks rather than loss all so that he cannot be understood to have gratified his Enemies and past from his Right and therefore that he ought to be restored to his Office Likeas 6to It is notourly known That as by the common Law and custom of all Nations so likewayes by the special practice of Scotland Transactions made throw Force or Concussion are restored against as in the late Case at the Lady Grays instance against Lauderdale to whom she disponed an Interest she had in the Earl of Dundces Estate within the value From all which arises this plaine Reply to the Defenders saids two last Arguments viz That 1mo The Answerer has laboured of grievous mistakes in point of Law and as to the Opinion of Lawyers and Law and Custom of our own and other Nations in reference to the Effects of Impression and Forcible Awe from those in Authority And the meaning of those Texts in Law adduced by the Defenders anent the Authority of a sentence or res judicata is when the same proceeded upon Lawful Citation and hearing of Parties which cannot be subsumed upon in the Pursuers case 2do That as by what is abovesaid the Pursuers accepting of the 7000 Merks can import no homologation of the King's Letter and sentence of the Lords thereupon so neither can his renuncing of the Office upon his getting the said 7000 Merks be any Ratification of the Lords their proceedings of any Abdication of the Pursuers own Right because the sentence of the Lords forced him as well to renunce the Office as to accept of the 7000 Merks in respect that the 7000 Merks was decerned to be given him for his Office and it is not to be imagined that Haystoun would have payed the 7000 M. but upon a Discharge relative to the Pursuer his quitting the Office for which the 7000 Merks was to be the price and therefore as the Pursuers accepting of the 7000 Merks was in construction of Law as aforesaid but for preventing of his own greater loss of all so likewise must his renuncing of the Office seing without a Discharge in these Terms he could never have saved so much as the 7000 Merks it self And whereas the Answerer adduces Arguments for evincing that there could be no Concussion in the Pursuers Case As 1mo Because that no execution could have followed against the Pursuer upon any Article of the Lords Interloquitor and Act turning out the Pursuer and the other two Clerks so that the Pursuers not reclaiming by Bill or otherwayes but accepting of the 7000 Merks and removing himself from the Office were Acts of his own voluntary choice and therefore that there could be no Concussion Replyed That the forementioned Grounds in Law are opponed By which the Kings very written Order with the Lords sentence thereupon expresly Debarring the Pursuer by appointing his Colleague to pay him 7000 merks And that notwithstanding all the Expostulations used by the Pursuer with the Lords that he might be heard before they proceeded to any such Sentence were too weighty grounds of Awe and Necessity upon him to stay out when once turned out as said is And in those dayes not to offer contemtuously to repossess himself after such an Awful Letter from the King and Sentence of the Lords So that his Acceptance of the Money c. were Acts of meer necessity and nothing of free Election Whereas It is 2do contended That there can be do Concussion where the Lords of Session pronouncers of the sentence had no interest to Concuss but acted by Authority of the King in a matter that was according to the standing Laws And that the Lords sentence was obeyed by the Party Replyed That the whole Alleagiance proceeds upon affected mistakes certainly for the Lords of Session were not the principal Concussors what ever Accession some of them might have had in bringing it about But the Kings Letter complyed with by the Lords was the chief mean of Impression and Awe upon the Pursuer And which Letter commanded a matter which took away the Pursuers property and was downright contrary to the Law of the Nation in reference to the number of the Clerks in sua far as inveterate custome and consuetude the benefite of the Lieges express Concessions by Kings and Ratified in Parliament can make a Law for any thing especially when the six Clerkships in three Offices as then established is made by an express Law the very Standard and Rule of the Clerkships now and in all time coming So that no Obedience was ever given to that sentence of the Lords be the Pursuer but by Force and Awe and for saving his own utter Loss as said is Whereas it is 3tio Alleaged that esto there had been a distinct and clear Concussion And that consequently the Sentence of the Lords had been unjust That yet it was never heard an unjust sentence did vitiat the subject whereon it proceeded so that it could not be bona fide acquired by a singular Successor And therefore that the Defenders acquiring the Office bona fide must be assoizled from restoring it to the Pursuer Replyed That the point of Law is also every way mistaken here and specially in the Case of Concussion or Deeds done throw Awe and Force as to which the Action of Restitution competent to the Party laesed is in rem scripta as aforesaid and goes directly for recovering the thing extorted from whatsomever Possessor so that the Defenders acquisition tho never so bona fide made cannot hinder the Pursuer from getting back his own Office And 2do there was no formal sentence in this Case proceeding upon Citation or Debate but an Act of summar Arbitrary violence Whereas it is 4to alleadged That esto there had been Concussion and a Right of recovering the Office thereupon competent to the Pursuer yet the Pursuer having resigned and transmitted all in favours of Mr John Hay and his Successors he can never be heard now to pretend to the said Right of recovering his Office Replyed That this Argument proceeds likewayes upon a mistake because according to the principles in Law above adduced The Pursuers Acceptance of the 7000 Merks and thereupon Discharging and Renuncing being while the King that overawed him by His Letter aforesaid was on Life and the Pursuer aforesaid within His Reach and Jurisdiction all things done by him in pursuance of that Arbitration of the Lords that was so Masterfully injoyned are deeds that in construction of Law are the effects of the same continued awe force as aforeiaid And the same as if Robbers had plundered the Pursuer of 100 lib and offered him back ten upon his Discharge of the whole in which case no Man can imagine that by accepting the ten pounds on these Terms he had either prejudged himself or excused the Robber from Restitution So that the Defenders say nothing unless they could Alleage and Prove that after the cause and Occasions of the Force and Aw that were upon the Pursuer were over And that he might had his Option to Retake his place or Accept the 7000 merks he did notwithstanding transact and renounce his Right which is impossible they can Alleage And as it is evident from the principles of Common Law possitive Texts Opinions of Doctors and practice of our Own and other Nations that the Pursuers Claim is beyond contradiction Just And it s most Reasonable upon these Grounds that he should be Reponed So upon the other hand and in point of material Equitiy and suitably to the proceedings of the Government in Order to the Redress of these manifold Wrongs that were committed in these Latter Reigns The Pursuers Case Merits special Consideration as that which is not only provided For by the same Claim of Right mentioning loss of Offices per expressum in Order to a Restoration and Redress of the Persons damnified thereby But likewayes Equally Just and Favourable with the most meritorious of all those provided For by the general Act anent Fines and Forefautures In respect That 1mo The generality of the Parties therein mentioned have made Bargains by themselves or their Friends whereas the Pursuer in this Case nor any Person for him had not the least accession to the agreeing for or modifying the said 7000 Merks for his Place but he resisted the same to the utmost of his power as said is 2do That by the said general Ah it is provided that all compositions for Forefaulters and Fines thoug transacted by the Forefaulted Persons or in their Names may be repeated c. And that Wives or Relicks who themselves made Bargains for their Liâ—rents and disponed the same for Causes not adequate thereto are nevertheless reponed against these Bargains And ita est That the Pursuer is yet in a more favourable Case upon the Grounds aforesaid in order to the repeating and being reponed to his Office and whom therefore the very general Act it self seems to comprehend by declaring that it shall be effectual to all the Liedges Forefaulted Fined or otherwayes leâ—ed and to be interpreted in their Favours in the largest sense In respect of all which the Pursuer ought in Law Justice and Equity to be Reponed to his Office and Place
did flow had an express power in Gremio of his Patent anno 1661 to Name six Clerks viz. One or more in each Office as the same should seem good to him or be profitable to the Leidges and which Clause is so far from being surreptiously ingrossed by Sir Archibald as is injuriously suggested by the Answerer that upon the contrare 1mo The Answerers cannot deny but Sir Archibald's Patent was under the KING' 's great Seal Read and Ratified in Parliament anno 1661. and that Sir Archibald at that time presented six Clerks to the Parliament that their Gifts were Read and Ratified and they Sworn and Admitted Clerks to the Parliament that they were also Sworn and Admitted Clerks to the Session and their Gifts recorded in the Books of Sederunt and that they were 15 or 16 years in possession before the KINGS Letter to turn out three of them was impetrate and which Ratification not passing unvoted of Course but in prosecution whereof six Clerks being Admitted by the Parliament and in possession serving the Parliament it is sufficient for establisting two Clerks in every Chamber 2do That the said Letter buir no other Cause for overturning the establishment and recurring to an abolished and impracticable custom of restricting the Clerks to three and appointing their Nomination by the LORDS but allanerly His MAJESTIES pleasure without respect to the conveniency of the Leidges which was a part of the Fundation of Sir Archibalds Patent as to the point of Naming Clerks 3tio That when the Contrivers of the said impetrate Letter their design was served and Alexander Monro turned out within a short space thereafter the whole number of six Clerks was restored by Tarbat's Gift in anno 1681 and by an Letter from the KING in anno 1682 in Favours of Tarbat The tenor of the Letter expresly relates to the power of constituting Deputs one or more as Sir Archibald Primrose per expressum had and did the same nor does the said Letter in Favours of Tarbat bear any thing of the incumbent Clerks consent as is alledged by the Answerers which is a Demonstration that the power of the naming Substitutes in the way and manner mentioned in Sir Archibalds Gift is alwayes held as the True and Legal Standart of subsequent Registers their Patents And 4to as a farder evidence of this the LORDS of Session in November the said year 1682 in the Books of Sederunt do declare that it was necessary there should be two Clerks for each of the three Offices or Clerkships of the Session in respect of the Multitudes of Process that the Leidges might be the better dispatched and because that formerly there had been two Clerks in each Chamber Likeas 5to in the year 1685 there is an Act of Parliament which in effect is declaratory of the constitution of the Clerks of Session and ordains two to be in each Office or Chamber so that it is admired with what confidence the Answerers could adventure upon the misrepresenting of the point of Fact so far as to assert that Tarbat was the first that procured an legal Warrand for two Clerks to officiate in each Office which as the samen was past Memory of Man in use and Sir Archibald Primose Patent aforesaid to that purpose not only ratified but put in execution by the Parliament as said is so it was made per expressum the Standart of any alleadged new Right purchased by Tarbat 4to As it is evident from what is abovesaid That Alexander Monro's Right is unquestionably well founded in Law so is it on the other hand most groundless and Irrelevant to pretend That the said Alexander was trouble some to the Lords and that thereupon they were necessitate to impetrate the Letter for turning him out For 1mo the said Alexander his carriage towards the LORDS and all others can be testified by hundreds to have been inculpable and were it otherwayes the LORDS no doubt might and ought to have turned him out upon a fair Tryal by order of Law and needed not have taken such an extraordinary course by an impetrate Letter without allowing him an hearing 2do The Petitioner must vindicate the generality of the Lords from the charge made against them by the Answerer in that it is notar that most of them were alse much surprized by the KING's Letter as the Clerks themselves And why should the LORDS have done such an Act of Injustice as to turn out three Clerks for the alledged fault of one and when the removing of that one if guilty by the ordinary course of Law had been far more honourable and safe for their Lordships 5to The acceptance of the 7000 Merks modified can never debare the Petitioner from being reponned in Justice to his Office Because 1mo The same was far short of the adequate worth of the Place and Office as is evident by the great Compositions of 10 or 12000 pounds that are given for such Places by Persons that intend no farder Advancement in their Life and the good Estates severals have made and daily makes 2do That both by Texts of common Law opinion of Doctors and practice of our own and other Nations as in the subsequent Replyes shall be made appear A Person in the Petitioner's circumstances the time of his taking the 7000 Merks it is understood under such impression by reason of the KING'S Authority who in joyned the Transaction and who was still on Life and the Petitioner under his power that as the complyance with the Kings Injunction would have been reckoned an Act of contempt so the not taking of any Money at all would have been reckoned an insolent Aggravation of the same and tended to the Petitioner's utter loss of all and that therefore in such Cases and Circumstances the Petitioner's taking the Money and renuncing the Office is far from an Homologation of the unjust and unequal imposed Price or any absolute Acquiescence to the LORDS determination and is only a necessary and Lawful consulting of his own Interest for saving something rather than lose all Therefore Persons in such Cases should be restored in Integrum ex capite metus impressionis notwithstanding any such acceptance or Discharge all which the Petitioner did very well know the time of the Discharge and so discharged because in those circumstances he could not better do and yet could not be thereby prejudged in Law or reason whenever Justice could take place And whereas the Answerer after his mistated matter of Fact alleages by way of Preface to his Dilators That the President of the meeting of the Estates rejected the Petitioners Claim And that by express Order of the Commissioners Grace the same was Expunged in plain Parliament out of the Act for Fines and Forefaulturs Replyed That these pretences are of a piece with the rest of the Answerers matter of Fact for the President of the meeting of the Estates could not hinder any thing that the Estates sand just And so it is that