Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION XVII.

Town Council of Burgh, and Bailie Court. - Burgh of Barony.

William Deas, Residenter in Edinburgh, and Margaret Wann, his Spouse
v.
The Procurator-Fiscal

Date: 7 February 1764
Case No. No 387.

The Magistrates of a royal burgh may inflict punishment on persons who are proved to keep disorderly houses, tho' no particular acts of obscenity are condescended upon, and though the ordinary forms requisite in criminal prosecutions are not observed.

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The suspenders, on the 19th of September 1764, had a criminal libel executed against them, at the instance of the Procurator-fiscal of the city of Edinburgh, setting forth, in general terms, that they had kept an irregular and disorderly house for a twelve-month past: That they received women of bad fame and profligate manners: That the people in the neighbourhood were freqently molested with the noise of oaths, profane and abandoned language, of scuffles, scolding, and tumultous rioting at improper hours. All, or any part of which being proved, the defenders ought to be banished the city of Edinburgh, and punished otherwise as accords.

This libel being sent to proof, the Magistrates, on the 15th of December pronounced an interlocutor, finding the complaint proven, and banishing them from the liberties of the city of Edinburgh.

A bill of suspension was presented, against this interlocutor, to the Court of Session, in which it was pleaded, That the sentence of the Magistrates was irregular, illegal, and oppressive: That the libel was conceived in too vague and indefinite terms: That no such particular acts of indecency or obscenity were condescended upon, as could subject them to so severe punishment: That no time was allowed them to prepare for the defence, but they were summarily cited to appear in 24 hours: That no list of the witnesses to be adduced against them, as is common in prosecutions of this kind, was presented with the libel: That, in criminal matters of such high importance, where the loss of life and liberty is in hazard, every subject is entitled to have his cause tried by a jury of his countrymen; and that a list of the persons to pass upon the assize should also have been given them. However, both of these were neglected in this case; they got no information about the witnesses who were to give evidence against them, and so could have no opportunity of objecting to their examinanation; and, in place of a fair trial by a jury, they were deprived of their liberty of citizens by a common sentence of the magistrates. It was also contended, That the sentence ought to be repealed, as the complaint had been sent to proof before any answer was made to it, and before any judgement upon the relevancy.

That the Magistrates had been equally precipitate in carrying the sentence into execution, as they had before been unjust to the defenders in denying them time to prepare for their defence: That, in the latter case, the interval of eight days, was most commonly allowed; and, in the former, the legal induciæ of fifteen days were seldom refused.

'The Court refused the bill, and adhered to the Magistrates' interlocutors.

Act. John Swinton Junior. Fac. Col. No 133. p. 312.