Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

The Magistrates of Edinburgh,
v.
Thomas Mackie, Priest

Date: 21 July 1711

Click here to view a pdf copy of this documet : PDF Copy

Thomas Mackie being charged upon a decreet, obtained against him as a priest, upon the Act 3. Sess. 8. and 9. Par. K. W. and her Majesty's proclamation 2d September, 1709; before the Magistrates of Edinburgh, as Justices of Peace within the liberties and privileges thereof; at the instance of Mr. Samuel Gray, their procurator-fiscal, to remove himself furth of Scotland within a certain short space; with certification, that he should incur the pain of death, in case of returning: he offered a bill of suspension upon these grounds: 1, The said Act 3. empowers only the Lords of Privy Council or Justiciary to banish popish priests convicted; and therefore now, when the Privy Council is taken away, the Lords of Justiciary are the only proper Judges to send priests into banishment. So that the sentence against Mr. Mackie is a non suo judice. For her Majesty's proclamation, 2d September, 1709, requiring Justices of Peace to put the laws in execution against papists, gives no new jurisdiction, but only continues what the law had formerly given them within their respective districts. 2. The decreet is intrinsically null for want of probation, in so far as the constables were admitted as witnesses, who were the accusers, and to be gainers in the event; 500 merks being appointed by Act of Parliament as a reward to the discoverer of any popish priest, jesuit, or trafficking papist. Women were also admitted to bear witness. 3. The trial proceeded without an inquest; which ought not to have been done in the case of a crime inferring so severe a punishment.

Answered for the chargers.—Whatever might be said of laws referring the cognition of matters to the Privy Council with discretionary powers; yet, in present case, where law hath determined the nature, proof, and punishment of a crime, and hath left only the execution to the Privy Council; the suppression of that Court cannot be reckoned an abrogation of the other heads of the act 1700; but the execution thereof becomes the province of every Judge and Magistrate within his particular jurisdiction. For it is upon the account of executing the laws, that they are invested with powers and jurisdiction: which execution is universal, except in so far as it is restrained by the special privilege or competency of any other jurisdiction; and when that is suppressed, the ordinary jurisdiction, as freed of that restriction, takes effect universally for executing the laws. Nor is it any absurdity that the Magistrates of Edinburgh, who have but a territorial and circumscribed jurisdiction, should banish out of Scotland: because, that is the sentence of the law, which their jurisdiction gives them only authority to pronounce; and her Majesty, in whom the Privy Council powers are vested eminently, did, by her proclamation, call and authorize the ordinary Judges to put the laws in execution, which is their duty. 2. A reward of the law is no bribery, or exception against a witness. Besides, the prosecution was not at the instance of the constables, but of the procurator-fiscal. And the constables had no pretence to a reward in this case. These were not the discoverers, but went, in obedience to the magistrates' order, and seized Mackie. Again, women are habile witnesses in occult crimes, as this is. And he refused to purge himself by taking the formula against popery. 3. No law requires trial by an inquest before the Justices of Peace in Scotland. And the Privy Council (when in being,) did proceed in the trial of the same crime without any inquest.

The Lords refused to pass the bill of suspension.

Page 533.