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This is a 2 volume
publication
Certain offices of great importance, connected with the
law, are, in general, executed without the aid of professional preparation.
Yet some acquaintance with various branches of the law of Scotland is
indispensable to the easy, secure, and satisfactory discharge, of the duties
respectively attached to them. To supply such information is the design of
this Treatise. The history, constitution, and nature, of the several
offices, are explained in the First Book. Separate chapters are allotted to
the office of Constable, of Commissioner of Supply, and Commissioner under
the Comprehending Acts.
The office of Justice of the Peace required more detail:
The office in general the Sessions of the Peace; their general Jurisdiction;
their Civil Powers; the Duty of Justices under the
Small Debt Acts the Criminal Jurisdiction of the
Sessions; the Rules of Evidence by which their Decisions ought to be
regulated; the Form of Process, of Decrees, of Review,— are, therefore,
explained at large in separate chapters.
This, however, is making the
magistrate acquainted with his powers merely. In the three succeeding Books,
therefore, the subjects are explained, with which, in the exercise of those
powers, he is necessarily conversant; under each head, care being taken to
mention, particularly, to what magistracy jurisdiction belongs; whether to
Commissioners of Supply, or to Commissioners under
Comprehending Acts, or to Constables, or to the Sessions of the
Peace, or to individual Justices of Peace; and whether
to one, two, or more Justices; and whether it belongs
to these magistrates exclusively, or in common with
others also; particularly Judges Ordinary, that is, Sheriffs and Magistrates
of boroughs, the native jurisdictions of our common law.
The Public Peace is the subject of the Second Book, which
consists of three chapters: the first, concerning Breaches of the Peace; the
second, concerning preventive Justice, or, the precautions to be taken by
magistrates for preserving the peace; the third, concerning Vindictive and
Remedial Justice, or, the measures employed for punishing and redressing the
breach of the peace.
The Third Book treats of the Public Police; or those
regulations which have been made, for preventing Idleness and Vagrancy, for
establishing standard Weights and Measures, and
respecting those other multifarious particulars, attention to which is
essential, if not to the existence, yet to the health and vigour of the
body politic.
Under the head of Rural Polity, such subjects are
arranged in the Fourth Book, as seem to be connected
with landed property ; and, of course, necessary and interesting to country
gentlemen, whether in the commission of the peace or not. Relating to the
Army, Navy, Militia, Revenue, various duties are
incumbent on the above magistrates: Under the head of
Public Polity, these are the subject of the Fifth Book;
which concludes with two chapters, the one concerning
the Customs, the other concerning the Laws of Excise.
I have endeavoured to express myself in language
perspicuous to every reader. But magistrates should
know the language of the law which they administer. Technical terms,
therefore, could not, with propriety, be altogether excluded. Their meaning,
however, is either explained in a note, or obvious from
the context, or on consulting the index, an
explanation will be found in some other part of the
work.
In quoting decisions from printed books, I
generally mention my authority. Where, again, they
have either been taken down by myself, or communicated
to me by my professional friends, I have almost always
had an opportunity of perusing the printed papers, and seldom omit giving
the precise words of the decree. The only printed reports of the decisions
of the criminal courts are, Mr. Maclaurin's (Lord
Dreghorn) Criminal Cases, and the Collection of Trials by the late Hugo
Arnot, Esq. advocate, both of which are limited in their plan.
Excepting, therefore, some late
decisions, when I had myself an opportunity of being present in the Court of
Justiciary, such as I have occasion to mention are taken either from the
Books of Adjournal (Record of the Court of Justiciary),
or from Mr. Hume's Commentaries on the Criminal Law of
Scotland. On many occasions, indeed, which' did not admit of particular
acknowledgment, that esteemed performance has aided and facilitated my
progress.
This Treatise is divided into text and notes. In
the former, the principles of law are stated as concisely as appeared
consistent with perspicuity and useful knowledge. In
the latter, the authorities, whether decisions or statutory clauses, are
generally quoted at large; from which the reader is
enabled to judge of the accuracy of the statement in the text. Appendixes
are added, containing such Statutes as Justices of Peace have most frequent
occasion to consult, with a collection of Warrants, and other forms of
Writs.
That the information wanted may be obtained at once,
without the delay or trouble of circuitous reading, there is prefixed to
each Volume a copious Table of Contents; and to the lastVolume there is
added a very full alphabetical Index to the Notes and Appendixes, as well as
to the Text ; and containing, under the articles
"Act" and "Case," references,
not to the whole decisions and statutes mentioned in this Treatise, but to
such only as it seemed material to distinguish. This
plan is intended to answer two different, but equally necessary, purposes.
It is intended that the Text, Notes, and Appendixes, together, shall afford
that particular information which may be occasionally necessary in real
business: it is intended, again, that the regular perusal of the
Text alone, shall give the magistrate that general
acquaintance with the whole range of his powers, without which, he cannot
discharge his duty either with satisfaction, or credit, or safety; even
though he may have the amplest and most accessible magazine of legal
information lying on his desk, to consult
occasionally.
That either object has been completely attained, It
would be great presumption to imagine.
Amidst such multiplicity, there must be both inaccuracies and
omissions. This only may be safely said, that nothing which appeared to be
useful or necessary has been intentionally omitted; while every thing that
seemed likely to discourage the general reader from
the regular perusal of the Text has been carefully
excluded from it the statutory quotations, and detail
of authorities, and of decided cases, which even professional readers find
tedious and irksome, being generally inserted in the Notes.
If I have not succeeded in the latter object, the fault
cannot be imputable to my subject. In an inquisitive and intelligent age,
when few branches even of abstruse science are any longer exclusively
confined to the schools, is there any thing in the subject, at least, that
should limit to professional readers the regular perusal of a general view
of some important parts of our municipal institutions?
Every person is bound, as well as interested, to
acquire some knowledge of the laws by which he is
governed: Besides, jurisprudence, more than almost any
other department of study, is connected with general
literature, with the science of the individual, and of the species, as well
as with the national manners, history, and antiquities.
But there are peculiar incentives to undertake a
work intended for the perusal of the country gentlemen
of Scotland : Their attention to legal knowledge is
observed both by Sir William Blackstone, and by the
late Prime Serjeant Browneb of the Irish bar, as an
example worthy of imitation.
From the variety of subject contained in this Treatise,
it will appear, that the discharge of important duties is expected
from country gentlemen. Under
free constitutions, the interest of the crown and its
subjects can never be opposite. Private individuals, therefore without risk
or jealousy, may be entrusted with the execution of public functions.
Hence the inclination of the British
monarchy to dispense the blessings of law and government, as well as
to maintain the national defence, by the gratuitous instrumentality of the
nobles and gentry. By the upright and able discharge of those functions,
they cherish in the minds of the lower orders that spirit of subordination
and respectful attachment to rank, which is the
strongest tie of the social union; and thus promote the influence
and consideration of their own order, while they
render essential service to the community. Whereas, on
the other hand, even by declining those offices, it is
in vain for the landed proprietor to flatter himself with the hope of
escaping altogether from the sphere of public
usefulness. As an heritor, merely, the law reaches him;
and, under that appellation, as we shall see, calls him
to the performance of various duties: So deeply
is a reliance on the spirited exertions of country
gentlemen interwoven into our laws and constitution.
In Scotland, indeed, there can be no
apology for any gentleman wishing to decline the office, in
particular, of Justice of the Peace, supposed to be the most difficult and
troublesome, as it is the most important. The burdensome
part of the duty of the English Sessions of the Peace is here almost
entirely devolved upon the Sheriff,
whose office in England is merely ministerial.
Every assistance, however, is due to gentlemen in the
gratuitous discharge of public duties. In England,
William Lambard of Lincoln's Inn published his famous
Irenarcha, in the reign of queen Elizabeth; Michael Dalton of Lincoln's Inn
published in the Country Justice, in the reign of James I; and lastly, the
late Dr. Burn, his "Justice of the Peace"
and Parish Officer, in the Reign of George II.
There are several other English writers
on the same subject, besides
those three standard authors. In Scotland, Mr. William
Forbes, advocate, about the beginning of the last century, published a small
volume, entitled, "The duty and powers of Justices"
of. the Peace in this part of Great Britain called "Scotland." It
contains little more than an abstract of the two
general statutes 1617, c. 8, and 1661, c. 38, and some
observations concerning the customs and excise, which are little adapted to
the present state of those branches of our law. Even
at the time his book was written, it could not be
considered as a complete guide to justices of peace: and what
changes in the laws have since taken place may be easily imagined.
A report generally prevails, that
the late Andrew Grosbie, Esq. advocate, had prepared for the press a
work concerning justices of peace. But the only
work Mr. Crosbie had completed, was a large
commentary on the act 1701, "for
preventing wrongous imprisonment." Afterwards he
included in his plan the general doctrine concerning statutory offences, the
revenue laws, and indeed most of those statutes the execution of which is
entrusted to justices of peace. The manuscript was in
the hands of a bookseller, but returned for farther alterations. Mr. Crosbie
did not live to finish, at least, the additional part. Since his death, this
work has not been traced; although the commentary on so popular and valuable
an enactment as the statute 1701, which must have involved the discussion of
many interesting principles of criminal and constitutional law, would be
received with avidity from the pen of that celebrated lawyer.
The late lord Gardenstone,
some years before his death, began a work on the office of justice of the
peace, on an extensive scale, in the form of a dictionary, and continued it
to the letter O. Of this manuscript, which is in the possession of Francis
Garden, Esq. of Troup, I have been favoured with the use, and have thus had
the pleasure of recording some of the legal opinions of that able and
intelligent judge.
The late Archibald Murray,
Esq. of Murrayfieid, who, from the records of the Sessions for the county of
Edinburgh, appears to have been, for many years, a very active Justice of
Peace, drew up a short summary of the duties of this magistracy, under the
title of "the Scots Justice of Peace Fade mecum" This manuscript was
obligingly communicated to me by his grandson John Archibald Murray, Esq.
advocate. And Lord Woodhouselee did me the favour to put into my hands a
printed summary, on a larger scale drawn up for the county of Inverness, by
himself and Simon Fraser, Esq. the sheriff-depute.
In 1788, a work in two volumes, quarto, was published,
under the title, "the Office, and Power, and Jurisdiction of Justices of the
Peace and Commissioners of Supply," by Dr. Boyd. Of this performance I shall
say nothing ; because, had there been any hope of rendering it useful, by
such alterations as it is allowable to make on the work of another, the
present publication would never have been thought of. A treatise, such as
this is intended to be, appears thus to be necessary. As I have not the
advantage of being myself personally conversant in the execution of any of
the offices here treated of, much pains have been taken to supply my
deficiency in practical knowledge. The books of the sessions of the peace
for the county of Edinburgh have been regularly kept from the beginning of
the last century. For many years the sederunts were usually attended by the
Crown Counsel, and several Senators of the Coll of Justice. These records I
perused regularly. I made such extracts as I thought would be useful in this
work. In the records of the court of justiciary I had an opportunity of
seeing those cases where the sentences of justices of peace, in the exercise
of their criminal jurisdiction, had come under the
review of that court; and many of the recorded
pleadings contain much learning and able disquisition concerning this
magistracy. Farther, very particular queries, concerning the practice and
forms of procedure, were transmitted to the clerks of the peace of the
several counties : From every quarter, and almost every county of Scotland,
I have been favoured with distinct, intelligent, and copious answers. These,
for which my sincere thanks are* due, have afforded me the best possible
materials for giving a safe and correct view of a difficult subject,
on which there is no printed
information. Likewise to my friends at the bar, who,
as sheriffs, justices of peace, and country gentlemen, have occasion to know
the practice of their respective counties, I owe many
oral, and some written communications, which
materially aided me in this part of my subject.
To Robert Hamilton, Esq. advocate, I am indebted for
being able to present to the reader Oliver Cromwell's
Instructions to Justices of Peace, which were not to be found either in the
public Records or in the Advocates Library ; and for every other assistance
that could be afforded me from his valuable collections concerning the laws
and history of Scotland.
I am indebted to James Clerk,
Esq. sheriff-depute, of the county of Edinburgh, for information, which was
of essential use in some of the most important practical chapters of the
work. The chapter concerning the regulations for the maintenance of the
poor, being a subject connected with ecclesiastical law and practice, was
perused by the reverend Sir Henry Moncrieff Wellwood, Baronet, and by the
reverend Dr. Finlayson, who did me the favour to communicate to me their
remarks in writing.
In the Laws of the Customs
and Excise, from the multiplicity and frequent change of enactments,
accuracy is not easily attained. The two chapters concerning these subjects,
and such passages as relate to the Stamp Acts, were revised by gentlemen of
official experience in their respective departments. The chapter concerning
the Small Debt Act, that concerning Masters and Servants, and most of the
chapters of the Fourth Book, and the Appendix of Stiles, were revised by Mr.
William Macfarlane, clerk to the signet, to whose acquaintance with the
whole routine of the business of a justice of peace, and commissioner of
supply, I have been much indebted in the course of this work.
If I flatter myself, that my errors and omissions are not
numerous or material, it is on these aids I rely; and, especially, upon the
regular revisal of the whole work, by the Right Honourable Judge, under the
sanction of whose name I have the honour to present it to the Public.
Volume I |
Volume II |
