John Sharp of Hoddam v. Charles Maxwell of Cowhill
Date: 17 July 1711 Case No. No 315.
Justices of Peace not competent to judge of scandal, or verbal injuries.
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In discussing a suspension at Cowhill's instance, of a decreet obtained at the instance of the Procurator-fiscal of the Justices of Peace within the shire of Dumfries, and John Sharp of Hoddam, fining Cowhill in 400 merks, for saying that Hoddam was guilty of several acts of falsehood, injustice, and malversation in his office; the Lords found, that the Justices of Peace are not Judges competent to cognosce upon scandal, or a verbal injury.
Fol. Dic. v. 1. p. 508. Forbes, p. 525.*** Fountainhall reports this case.
1711. July 7.—The Freeholders of the shire of Dumfries being met in November last, to chuse a Member to represent them in the new Parliament, a competition arising betwixt Charles Murray, alias Maxwell of Cowhill, and Sharp of Hoddam, who had the right to vote for these lands? Cowhill being offended to see his title controverted, he broke forth into such reflections, that he wondered to see Hoddam pretend, whom the Lords had dispossessed and removed from that estate, for his falsehood and malversations. Hoddam, the next day, gives in a complaint against him for these expressions, to a Quorum of the Justices of Peace, and who were likewise heritors, and present when the defamation was uttered; Cowhill having given in a declinator, pretending they were not Judges competent to what happened at elections, but only the House of Commons; Which they rejected, and finding the libel relevant, they took probation; and the same being proved, they fined him in 400 merks; which he suspends on these reasons, 1mo, Incompetency, verbal injuries belonging to the cognizance of the Commissaries, and not to Justices of peace; but this relating to an election of a Parliament Member, none but a Parliament could judge it; 2do, Iniquity, in refusing him a sight of the libel, when required; 3tio, Prescribed, not being complained, upon in the Court where committed; seeing Judges, by their intrinsic power, may, ex incontinenti, punish indignities done in their presence; but this was not resented till the next day; whereas the law says, injuria statim ad animum non revocata, censetur oblita et remissa. Answered, Justices of Peace through all Scotland have always judged verbal injuries; and much more now, when the privileges of the English Justices are communicated to them by the Union; and this is not in propriety of words a scandal, which is defaming one behind his back, and has no contingency with a debateable election, which would devolve to the Parliament, but is a quite distinct thing. To the second, In all such complaints, the Justices proceed summarie, de plano, et sine strepitu vel figura judicii, without giving them days to see the libel, but read it, and put them to a present answer. To the third, He could not apply to the meeting qua freeholders; because, though many of them were Justices of the Peace, yet they were not met there in their judicative capacity, but only to chuse a Knight of the shire; therefore, he behoved to delay till a Court met that could judge it. The Lords were all clear that the Justices could bind any, upon appearance of breach of the peace, to find caution to keep it; but ere they sustained their competency to judge scandals, they desired to see the practice and power of the English Justices, if it extended to such cases; and thought there was no iniquity in proceeding summarily, without giving diets to take up the libel to see. Some thought the fine was too large, and not commensurated to the fault; for fraud and circumvention are legal terms, and used every day, without any punishment. And though there be an excess in self-defence, yet it is not so rigidly punished, as where there is no previous provocation given, as was here: Yet it cannot be justified to defame any person in the face of a Court.
1711. July 18.—The Lords advised the debate mentioned supra, 7th July 1711, between Cowhill and Hoddam, anent the Justices of Peace in England their power to judge scandals; and Hoddam produced a tractate by one Shephard, wherein he affirms they are competent Judges in such; but it was observed, he wrote in Oliver the Usurper's time, when the Ecclesiastical Courts, to whom these cases properly belong, were suppressed. Cowhill, shewed another English Lawyer, called Bain, who writes the Guide to Justices in 1707. who affirms, that such scandals belong not to the Justices of Peace, such as the calling one a knave, &c. unless that he add he offers to prove it. Though this distinction seems very nice, yet the Lords found our Justices of Peace not competent to such scandals; and, therefore, suspended Cowhill's fine of 400 merks. But this does not hinder Hoddam to insist against him elsewhere, for these atrocious injuries.