OF THE tional tional regulations; the one was giving "full power, autho- $ 3. rity, and commiffion to the lords of his majesty's privy HISTORY "council, to fet down and impofe penalties upon fuch OFFICE. " of the juftices of peace as fhall not keep and observe 1633, c. 25, "the diets prefixed for their feveral and particular meet- gave addi"ings;" the other was giving "power likewife to the powers to "faid lords of privy council to enlarge and amplifie the juftices. "power and authority of the faid juftices of peace, if they "fhall find it neceffary and expedient;" with the farther provifion, that whatever they should decree and determine thereanent, fhould have the force, ftrength, and power, of an act of parliament. fion. "THIS act, (obferves Sir George Mackenzie ") being in Only a "effect but a commiffion, might be alleged to expire with commif"the king and parliament who gave it, as all mandates "laft no longer than the mandator; and the power being given to the privy council indefinitely, without adding for "the time being, it may be urged that it could last no "longer than that commiflion of council;" yet as both he and Forbes tell us, the council were in ufe to give inftructions by virtue of this act. KING JAMES's regulations in 1617, ratified and enlarged by the first parliament of King Charles I. were adopted, though neither improved nor enlarged, at least to any confiderable degree, by the instructions to the justices of peace Oliver framed by Cromwell, in whose days, however, the advan- Cromtages of the inftitution began firft to be fenfibly expe- ftructions. rienced in this country - Obfervations on the Acts, p. 384. have been more from the awe, repu- Lord Gardenston remarks, that the life and efficacy with which Oliver Cromwell inspired the office, muft tation, and vigour, of his government, well's in § 3 HISTORY OF THE OFFICE. c. 38. THE first parliament of Charles II. 1661, ch. 38. "tak❝ing under confideration how much the appointing of jus"tices of peace and conftables within all the fhires of this A& 1661, "kingdom, under the reign of his majesty's royal predeGreat utili-" ceflors, did contribute to the peace, quiet, and good ty of juftices and confta- government thereof, and to the speedy and impartial bles. "execution of law and juftice," enacted and ordained, that, in all time coming, there fhould be justices of peace appointed within each feveral fhire of this king"dom, to be nominated from time to time by his majesty fhire. "and his royal fucceffors, and empowered fuch justices. Their ap pointment in each "of peace to administrate justice, and put his majesty's "laws in execution, according to the particular inftruc"tions" therein mentioned. THESE inftructions of the ftatute 1661, which are little more than a somewhat fuller and more articulate statement of thofe of Oliver Cromwell in 1656, and King James's At 1661 act 1617, ftill conftitute our only general code of laws is our only general touching thefe offices. Subfequent enactments, how numecode of laws rous and important foever, regulate only particular branches ject. of their jurifdiction. on this fub ONLY one other ftatute was paffed concerning juftices of peace while Scotland remained a feparate kingdom. This 1685, c. 16. is James, 7th parliament 1685, ch. 16. It mentions "the "many advantages which the lieges might have had if the << juftices of peace had exerced their functions with that diligence which the law required, and the many evils, "efpecially in ecclefiaftic diforders and irregularities, which "might have been prevented by their care," and for "re"meid thereof in time to come;" ratifies the acts of parliament 1617, 1633, and 1661; and further, "gave full power, authority, and commiffion to the faid juftices to the laws in execution against all who fhall be guilty " of conventicles, irregular baptisms and marriages, with put $3. HIS FORY OF THE powers to nifance of various of "drawing from church ordinances, and other fuch dif "orders, in fo far as they are not capital, conform to the "laws made thereanent; and where the crime is capital OFFICE. "they are to fecure the perfons, and acquaint the sheriff Gives new " or other judge ordinary thereof: And it is declared, that take cog"in their proceedings against church irregularities, bap"tifms, marriages, and conventicles, the juftices may pro- fences. "ceed immediately, without waiting any time after the "crimes are committed." The ftatute contains this extraordinary declaration, that for "their farther encourage- Allows "ment, his majefty allows unto the faid juftices of peace, fines they "the fynes of all, except heritors, which fhall arife from inflict. "these delinquencies, judged by them to be employed for them the explicating of their jurisdiction as they fhall think fit; "and for difcovering of what the fines of heritors fhall "amount to. The clerks of these courts are hereby appointed to fend a subscribed lift of them to the clerks "of exchequer in the first week of November yearly, under Refcind the pain of deprivation." But this ftatute, with other ab- ed by furd and oppreffive acts of that reign, was refcinded by the general reciflory act, William and Mary, 1690, ch. 28. at 1690, c. 28. the union. By the 18th article of the union, it is provided, that Articles of the laws for the regulation of trade, cuftoms, and the excife, fhall be the fame in Scotland as in England; but that all the other laws in Scotland fhall remain in force; yet alterable by the parliament of Great Britain: but with this caution, that laws relating to public policy are alterable at the difcretion of the parliament; laws relating to private right are not to be altered but for the evident utility of the people of Scotland. THIS article of the union was followed out by the queen's Q. Anne's proclamaproclamation, which appointed juftices of the peace with tion. the fame powers as thofe in England, in matters touching the customs and excife, but in every thing else to be regu OF THE OFFICE. 6th Anne, c. 6. gives them the power of English juf-" tices touch-6 ing the peace. lated by the fame laws as formerly; and by an act for $ 3. HISTORY rendering the union of the two kingdoms more entire and complete, which ordained, "that in every shire and "stewartry within Scotland, and alfo in fuch cities, liberties, and precincts, in Scotland, as her majefty, her heirs or fucceffors, fhall think fit, there fhall be appointed by her majefty, her heirs or fucceffors, under the great feal of Great Britain, a fufficient number of good " and lawful men to be juftices of peace within their respective shires, stewartries, cities, boroughs, liberties, or "precincts; which perfons fo appointed, over and above the "several powers and authorities vested in juftices of peace "by the laws of Scotland, fhall be further authorised to do, "ufe, and exerce, over all perfons within their feveral "bounds, whatever doth appertain to the office and trust "of a juftice of peace, by virtue of the laws and acts of par"liament made in England before the union, in relation to, "and for the prefervation of, the public peace: provided, "nevertheless, that, in the feffions of the peace, the methods "of trial and judgment fhall be according to the laws and "cuftoms of Scotland." Import of this act. How it en powers. THIS statute did not fo much give the juftices of peace new jurisdiction, as remove difficulties preventing the proper exercise of that jurisdiction which they already enjoyed. THE Scottish acts had laid them under restrictions, first, larged their with respect to the perfons against whom they could proceed. In the cafe " of any landed gentleman, whofe rents "amount to 10 chalders of victual, or 1000 marks of filver, "refusing, or delaying without caufe, when charged to "make his appearance before a juftice," the act 1617 did not empower the juftice, whofe warrant was contemned, to command his conftable, or other officer, to bring them. 26 Anne, ch. 6, § 2. Chap. I. § 3. See Appendix I. HISTORY tion andre the Scottish con- acs. before him, as it did in the case of perfons of meaner degree. § 3. It went no farther than directing the justice "to inform the "fame to fome of his majefty's privy counfel, to the effect orrice. "the party of the quality forefaid may be called, and fined " for his difobedience." And in like manner, that part of the fame act, giving them jurisdiction in the cafe of riots and breaches of the peace, empowers them to proceed only against persons "under the degree of noblemen, prelates, "counsellors, and fenators of the college of justice." Se- Removed condly, they laid them under inconvenient restrictions touch- the limitaing the interval to elapfe before they were allowed to fum- ftriction of mons any perfon before them. The ftatute 1617 tained an express declaration, that "neither the erection of "the faid commiffioners and juftices of peace, and grant “of jurisdiction and privileges to them, nor the making or approbation of the particular articles above written, intro"duced in their favour, nor any thing therein contained, "fhall be in any fort derogatory or prejudicial to the rights, privileges, or liberties, granted and bestowed by his ma"jefty, or his highness's royal predeceffors, of before to any ❝ of his majestie's subjects, of whatsoever eftate or quality, "from the higheft to the loweft: but declares, that the "faid rights, privileges, or liberties, fhall remain in their "own integrity safe and entire, and unhurt or prejudged. "And left this refervation should seem altogether to destroy "the power granted to the faid juftices, or fhould beget con"troverfies betwixt them and any others having right or "liberty of jurisdiction, as said is, our fovereign lord, for removing of all queftion which may arife betwixt them "thereanent, declares, that it shall not be lawful, nor per"mitted to the faid juftices, to make any citation of party before "their court till the expiry of the space of fifteen days after "the committing of the fact, for which the committer is to "be convened; at the complete outrunning of which space, if any having power and jurifdiction, as faid is, hath ne • Chap. II. § 14. Appendix I. |