A process of damages for a verbal injury, is competent before the Court of Session in the first instance.
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Samuel Auchenleck, brought a process against James Gordon, for having tittered several defamatory and injurious expressions against him; and particularly setting forth, That Gordon asked the pursuer's son, “Whether he came with a staff to murder him?” adding, “that the pursuer and his family ought to have their faces marked when they offered to murder on the highway; that they were a parcel of thieves, robbers, murderers, and coiners of false money, and deserved to be banished.” And the libel concluded for damages and expenses of process.
The defender objected, That this action being for slander and defamation, could not be brought in the first instance before the Court of Session, as the Commissaries were the only judges competent for questions of that kind.
The Lord Ordinary sustained process, and found the action competent; and, before answer, allowed a proof to both parties.
The defender applied by petition to the Lords, and pleaded, That before the Reformation, Commissaries only could judge in matters of scandal, and the civil courts were not even entitled to judge in these matters by review; for appeals from the bishops courts were only competent to the Pope, or judges delegated by him
After the Reformation, by statute 1560, ratified Parl. 1581, cap. 115. all questions depending before the Commissaries, when their jurisdiction was abrogated, were allowed to be tried by the judges ordinary; but soon after, it was thought necessary, notwithstanding the abolition of Episcopacy, to continue the office of Commissaries. These Commissaries were named by the Crown, and vested with the same jurisdiction that the ancient Commissaries had.
By the statute 1609, cap. 6. bishops were restored to their full powers, and their Commissaries were declared entitled “to judge in all causes spiritual and ecclesiastical wherein the Commissaries then in office were in use to decide.” And by the same statute, the Court of Session is only empowered to judge in matters consistorial, as a court of review, when the Commissaries of Edinburgh should not do their duty, and to advocate from inferior commissaries for iniquity. And that matters of scandal are consistorial, appears from the instructions to the Commissaries anno 1666, § 1. where such questions are expressly enumerated amongst other consistorial cases. And Sir George Mackenzie, Crim. B. 2. Tit. 20. says expressly, “That the bishop's officials are the only judges to verbal injuries, because these verbal injuries are considered as scandals.”
The reason why matters of scandal came to be appropriated to the jurisdiction of the Commissaries appears to be, that in the early ages of our law, the criminal judges only interposed in violent breaches of the peace, leaving crimes and injuries of less importance altogether unpunished. In rude and uncultivated ages, honour was a thing little understood, and verbal injuries made but slight impressions; but, as injuries of this kind were contrary to the doctrines of Christianity, they naturally fell under the observation of the clergy, who at first, probably, only admonished those who were guilty in that way, but by degrees came to inflict ecclesiastical censures; and at last, when they were allowed to hold courts, they added to that punishment a fine or mulct, which being sometimes applied to the party injured, came to receive the name of damages, though it is evident that the fine could only be imposed as a punishment of the crime, and to satisfy the resentment of the party injured, and not to restore him to any patrimonial interest, as none could be lost by the injury. And therefore, from the nature of the crime, as well as from the laws and practice whereby the jurisdiction of the Commissaries is established, questions of this sort can only be tried, in the first instance, before the Commissaries, and not before the Court of Session.
Observed on the Bench, That whatever was the ancient practice, yet for some years past, verbal injuries have been tried both before the Court of Justiciary and Court of Session, and even by Justices of Peace.
“The Lords refused the petition, and adhered to the Lord Ordinary's interlocutor, finding that the action was competent before the Court of Session.”
For the Petitioner, Johnston.
Fol. Dic. v. 3. p. 345. Fac. Col. No 147. p. 219.
