§ 2. DEFINI TION OF JUSTICES Judges of according to the laws, customs, and statutes, of this realm, without refpect of perfons °. THEY are described as judges of record. Hence a record or memorial made by the juftices of the peace of things done before them judicially, in the execution of their office, is faid Records, to be of fuch credit that it shall not be contradicted. "For why they bear faith." if men fhould be admitted," fays Dalton, "to deny the "fame, there never would be any end of controversies; " and therefore, to avoid all contention, while one faith "one thing, and another faith another thing, the law re"poseth itself wholly and folely in the report of the judge "." Great cause therefore, he adds, have justices of peace to take heed that they abuse not their credit, either to the oppreffion of the subject, by making an untrue record, or to the defrauding of the king, by fuppreffing the record that is true and lawful ". Peace, THEY are justices of the peace, which has been defined to what is it? be the confidence and quiet that is between men "." As human laws, however, extend not to the mind and con Dalt. ch. 2. Car. ii. 19, 6, 7. could certify the guilt of the most refpectable perfon of the community to the king's bench, or other court, who muft proceed to inflict the punishment, without admitting the accused to prove his innocence or alibi, &c. it is what is little reconcileable to our legal practice or opinions. And though we fo far qualify it, as to apply it to juftices, that is, a court of feflions of the peace, yet what difficulties, even in that view, there still are against our adoption of this part of the definition, fee book i, chap. 3. 9 Lamb. Eiren. b. 1. ch. 13. Dalt. c. 70. Burns v. Justices. Fitz. Juftice of Peace, p. 13. fcience, but only to the body, hands, and weapons, fo peace $2. in our law is rather the restraining of hands than the uniting of minds; and is taken for an abftinence from actual and injurious force or violence moved against the perfon of another, his goods, lands, or other poffeffions'. OF THE OFFICE. III. THE name and office of justices of peace are derived HISTORY by our lawyers from the Irenarche, appointed by the Roman governors to preserve the peace of their provinces. Notwith- Whence ftanding our acknowledged devotion to the civil law, we did derived. not early adopt this branch of their policy. The turbulent ftate of Scotland for ages certainly required, could feudal pride and tyranny have endured, fuch an inftitution as this. In those days the confervation of the peace was not who had tie charge of a peculiar magistracy, but only annexed to cer- charge of tain feudal jurifdictions, which difplayed the pageantry of office, without its efficacy, and were no lefs troublesome and formidable to the fovereign, than odious and oppreffive to in this the people; but yet, from a combination of caufes, the country. pecuniary difficulties of the crown, and the wants of favourites, were multiplied beyond all tolerable bounds, in fpite too of a regular fyftem, for checking and limiting them, that seems in no reign to have been totally out of view. the peace before the inftitution of justices A STRONG picture of the melancholy state of fociety under that plan of administering justice, appears in the narrative of our two earliest enactments touching the inftitution of justices of the peace, parl. James VI. 1587. ch. 82. and 1609. ch. 7; the latter of which, in particular, mentions the Act 1609, brutal and barbarous cuftom " of deadlie feads, whilk, by the Narrates " inveterate abuse of many paft ages, was become fa frequent the evils of hereditary "in this realm, as the fubjects of greatest rank and quality, jurifdic c. 7. upon every naughtie occafion of base and unworthie con- tions. "troverfies of neighbourhood, for turves, fold-dykes, furres Dalton's Country Justice, ch. 3. See also farther upon this subject below, Book 2. ch. 1. $3. HISTORY OF THE OFFICE. Caufe of the evils complained of. "or marches of lands, foolish words or drunken difcords "between their meaneft fervants and dependers and any "other in the country, did fo readily embrace the protec"tion of their unjuft and unneccflary quarrels, as did many "times involve themfelves and their hail friendship in maist "bloudie and mortal troubles, whilk they did profecute "with fik malice and cruelty as to the extreme peril of "their faules, infamie of their memorial, and overthraw of "their awne and their adverfaries houfes, did distract the "kingdom in oppofite factions, and many tymes furnished. "matter of maift pernitious, feditious, and civil warres." IT is farther added that this " corruption was fo univer"fal, that the greatest part prevailing against the best, cruel "barbarity hath both continuance and daily increase, until "his majefty, bending the excellent graces of his royal mind wherewith God has endowed him," &c. It then ascribes these evils to the neglect of the magiftrates who had the charge of preferving the peace: "His majefty con"fidering that nothing gave fa great grouth and strength "to that bypaft barbaritie as the ficuth of magiftrates, in "not fuppreffing the first feeds of thefe diffentions, whilk being "fniali and weak in the beginning, for peets, turves, devits, "fold-dykes, poinding, neighbourlie marches, injurious "words or light brawls were then easily to be fettled, if "diligence and authority had been joined for repreffing "whereof, whilk being neglected by thefe to whom it "pertained, thefe light jarres and infolences did very often "kindle fik flames of diforder, diffention, rankor, and feed, "as in many years with great ftreames of bloud, defolation "and ruin of great and ancient houfes and races, could "hardly be quenched; for remeed whereof," &c. And therefore, in order to strike at the root of these evils, the ftatute proceeds to the inftitution of justices of peace. "Sta"tutes and ordeins, that in every fhire within this kingdom, "there fhall be yearly appointed by his majeftie fome godlie, ар $ 3. HISTORY "wife, and vertuous gentleman of good quality, moyen, "and report, making refidence within the fame, in fik num- OF THE "bers as the bounds of the fhire fhall require, to be com- OFFICE. "milioners for keeping his majefty's peace, to whom his "majefty, with advice of the lords of his privy council, "fhall give power and commiffion to overfee, try, and pre- As a cure "vent all fik occafions as may breed trouble and violence for thofe amongst his majesty's subjects, or forceable contempt of viles the "his majesty's authority, and breach of his peace. And of juftices "to command all perfons in whom they fhall fee manifeft of peace. "intention to make trouble or diforder, either by gathering "together of idle and diforderly perfons, or by public bear ing or wearing of pistolet or other forbidding weapons, "and fik other riotous and fwaggring behaviour; to bind "themfelves, and find caution under competent pains, to "obferve his majefty's peace, and for their compearance "before his majefty's juftice, or lords of his privy council, "to underly fik order as fhall be found convenient for "punishing their tranfgreflions, or ftaying of troubles and "enormities; and if need fhall be, to require the dutiful " and obedient fubjects of the fhire to concur with them in "preventing all fik contempts and violences, or for taking or wairding of the wilful and difobedient authors, com"mitters, and forfterers of thefe crimes and disorders, un"der fik competent arbitrarie pains as his majesty and lords "of his privy council fhall appoint for the offenders; and "fik of the country as being required fhall not give their "ready and afald concurrence to his majesty's commiffioners "in the premises, whereby the ordinary magiftrates and "officers within the fhires may be the better affisted, and "their abfence, employments, or other impediments mair "commodiously supplied, without derogation of their jurif "diction, or want of ready comfort and juftice to the " obedient fubjects within the bounds thereof." evils de institution THIS magiftracy had been adopted in England earlier, Introdue tion into England. where it soon proved of fuch utility and importance as to draw from Sir Edward Coke this eulogy: "The whole "Christian world hath not the like of it if it be duly "executed." On its first introduction into this country, it did not at once take root and flourish. The firft of the two statutes which paffed during the minority of James, befides being Slow pro- the earliest attempt towards the inftitution of any thing grefs of this magiftracy refembling justices of peace, is, in many respects, a remarkin Scotland.able ftatute, deviating from the phrafeology of the Scottish cacy law, and appearing to have in view the introduction of circuits, after the model of those in England. But neither this nor the subsequent act 1609 appears to have been followed with any material confequences; notwithstanding the commendation bestowed in the latter ftatute upon the effiof the measures employed by his majesty for "the quiet"ness and comfort of his fubjects," and upon the "excel"lent wisdome and rare graces of his royall mind, where"with God hes endewed him mair abundantlie than ony "king that ever did raign in this iland." In a fubfequent 1617, ch. 8. period of the fame reign the ftatute 1617, ch. 8. ratified neral code and confirmed the instructions given of before by his maon this fub- jefty to the justices and commiflioners appointed for keep the first ge jec. ing of his majefty's peace, and to their conftables; and expreffing them more particularly, may be confidered as the first general code of instructions for the execution of those important offices. BUT notwithstanding these ample and explicit regulations, it still appears to have required the fostering support of a fucceffion of legislative interpofitions to keep this favourite inftitution from total decay. The ftatute 1617 was ratified, approved, and confirmed by the first parliament of Charles I. 1633, ch. 25.; which alfo introduced two addi t *4 inft. 170. |