Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Pitcairn v. Webster
Date: 18 July 1712
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In February last, Mr James Webster, one of the ministers of Edinburgh, and Mr Robert Freebairn, bookseller there, being accidentally in company of the magistrates, Mr Webster complained that Freebairn, in his auctions, sold wicked and prohibited books, and particularly Philostratus's Life of Apollonius Tyanasus, wherein that vile impostor and magician is equalized, if not preferred to, our blessed Saviour and his miracles; and which were greedily bought up by atheists and deists. And Mr Freebairn bidding him condescend, Mr Webster answered,—Such as Doctor Pitcairn, who is known to be a professed deist: and, for a farther proof of it, in that same auction, many striving for that infamous book, one regretted that there were none bidding for the Bible, the Doctor scoffingly answered, that it was no wonder it stuck in their hands, for verbum Dei manet in ceiemum: which was a direct ridiculing the Scriptures and the Christian religion. In the heat of this contest, Freebairn takes instruments on Mr Webster's words, and, carrying the relation to the Doctor, he raises a process against the said Mr Webster, before the sheriffs of Edinburgh, for redress of that atrocious injury, as tending to make him odious to all who own a God and revealed religion, and so ruin and break his employment. Of this pursuit Mr Webster raises an advocation to the Lords, on this ground, that the sheriffs are not competent judges to verbal injuries, scandals, and defamations; but that such do properly and solely belong to the commissaries; to whom he craved this cause to be remitted.
Answered,—They did not deny but the commissaries were competent judges to such actions; but it was not privative and exclusive of others, who may judge in such cases as well as they: for the sheriff' is the crown's ancient officer, long before there were any commissaries; and are appointed for keeping the peace, and putting the laws to execution, and sit on all crimes except treason and the four pleas of the crown; and, consequently, may punish verbal injuries. 2do, The Commissaries' jurisdiction originally was nothing but a mere invasion and encroachment of the churchmen over the civil magistrates, when the papal authority usurped the eminence of a universal bishop: yea, in Justinian's reign, the defensores ecclesiarum are reproved for meddling with testaments, l. 41. C. de Episcojns: Absurdum est clericis, si peritos se velint ostendere disceptationum Jbrensium. But, the Empire declining, they kept their grip of that, and of judging scandals, under the pretence of being the curia Christianitatis; and by degrees winded themselves into all matrimonial causes, divorces, bastardies, legitimations, adherences, teinds, benefices, stipends, &c. Bat Scotland and France, even under popery, preserved their rights so far as to cognosce many of these cases in their temporal courts: so only confirmation of testaments, divorces, &c. were left to the commissaries to judge in privatively in prima instantia; and the sheriffs are in daily use to fine and censure for verbal injuries.
Replied for Mr Webster,—The words libelled being only an injury consisting in words, and these dipping upon religion, there can be none so competent thereto as the commissaries, who are founded in the sole cognizance of such scandals: 1mo, By their instructions recorded in the Books of Sederunt in 1666, where they are classed, in the same period, with confirmations, divorces, and other things clearly privative, and so must all be homogeneous and of the same nature. 2do, Sir George Mackenzie, in his Criminals, tit. Jurisdiction of the Commissaries, lays it down for a principle, that the commissaries are the only judges competent to scandals and verbal injuries. 3tio, By a late decision, supra, 17th July, 1711, Sharp of Hoddam against Maxwell of Cotvhill, where opprobrious expressions were found not judgeable by the justices of peace, though uttered in their presence at the election of a member of Parliament, but only before the commissaries: where Mr Webster will be able to qualify that what he spoke was far from being animo injuriandi, but occasioned by Mr Freebairn's justifying his selling such wicked and forbidden books. And, whereas the sheriffs have sometimes judged such injuries, that was because the parties did not object, but prorogated the court, of consent; there being few judicatories who will not enlarge and extend their jurisdiction as far as they can; so this can never infer their cumulative power with the commissaries.
Duplied,—Sir George Mackenzie must not be taken in so nice precise a sense as to divest all other judges in the case of verbal injuries; for he confesses, there, that the privy council, as well as the commissaries, judged in such cases, and particularly in 1678, betwixt Grahame of Boquhaple and Johnston, for calling a gentleman a thief. Stair, lib. 1, tit. 9, says, the commissaries are judges competent to verbal injuries, but does not call them the sole judges, and adduces the practick, 5th February, 1669, Deans against Bothwelh, which proves their competency, and no more. As to Hoddam's case, there is no consequence from the jurisdiction of a justice of peace, and a sheriff; who have a much ampler commission.
The Lords considered this process was managed with much zeal, and that Mr Webster was willing to give reasonable satisfaction; therefore they recommended to the Justice Clerk, ordinary in the cause, to endeavour to settle the parties amicably.
