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THE

SCOTTISH JUSTICE'S

MANUAL.

JUSTICES OF THE PEACE.

[This Title is transferred from its Alphabetical place, in order to serve

as an Introduction.]

1. HISTORY OF THE OFFICE.

The office of Justices of the Peace, was first introduced into Scotland, by James VI. Their powers were gradually extended by subsequent enactments, till, on the Union of Scotland with England, the authority of Justices in the former, was made equal to that of Justices in the latter, regarding all matters connected with the preservations of the public peace.

In both kingdoms these offices were originally rather ministerial or administrative, than judicial; but, at present, the last is their most important attribute.

II. APPOINTMENT OF JUSTICES.

1. Form. Justices of the Peace are named by the King; and are appointed by a commission under the Great Seal,

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1 Act 1587, c. 82; and 1609, c. 7. Act 1617, c. 8–1661, c. 38.

6 Anne, c. 6. 4 See Hutcheson, b. i. c. 1, § 3. (Vol. i. p. 7 to 16.) 5 Hutcheson, b. i. c. 1, § 4. (i. 16 to 40.)

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addressed to all the Justices of one county together. Certain public officers are included in each commission, to the effect of making them Justices all over Scotland; among these are the members of His Majesty's Privy Council,—the Judges of the Scottish Supreme Courts—the Lord Advocate

and the Solicitor General for the time being; the other persons appointed are addressed by name, and are understood to be more directly connected with the county.

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2. Qualification. The King may appoint any person he pleases: no particular qualification is required : and there is no general disqualification preventing Justices from acting, except that introduced by a recent statute, which declares that no solicitor or procurator before any inferior court in Scotland, or the partner of such person, shall be entitled to act as a Justice of Peace, while he or his partner shall continue to practise in a court of the above description. Even this restriction seems not to affect the nomination of such an individual; but merely to suspend his power of acting under the commission of the peace.

There is no necessity imposed by law upon any person named in a commission of the peace to accept the appointment. Any one who wishes to abstain from being a Justice, may omit to qualify himself for discharging the functions of one, by taking the usual oaths; and there is no ground for supposing, that a Justice of the Peace, who wishes to be relieved of his office, may not resign as freely as any other public servant.3

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| Hutcheson, i. 1, § 5. (i. 42.) 2 6 Geo. IV., cap. 48, § 27.

This is the Amended Small Debt Act. See Appendix.

3 Hutcheson, i. I, S 9. (i. 50.)

3. Endurance of Commission. A commission of the peace formerly expired on the demise of the Sovereign who issued it. But it now remains in force for six months longer, unless a new commission be sooner granted by his successor.

As Justices hold their office merely in virtue of a commission, they can act no more after that is revoked, or has expired.

The crown may at any time recal à commission of the peace as well as any other; and in practice fresh commissions are issued from time to time, as changes require: and thus a Justice may be tacitly relieved or dismissed, by the omission of his name in a new commission.

4. Oaths to be taken by Justices. Justices are not entitled to act as such until they are duly qualified, by taking the particular oath annexed to the commission, 2 and the general oaths which all who accept of public trust within Scotland are bound to take;

But none of these are required to be taken more than once in a reign.

111. POWERS AND DUTIES OF JUSTICES.

The powers and duties of Justices are pointed out in the commission, and in those statutes, which direct them to take cognizance of particular matters.

| By Statute 1 Anne, cap. 8, § 2.

? For the oath annexed to the commission, See Appendix. The other oaths are those of allegiance and aljuration, with the assurance. See Hutcheson, i. 1, $ 6. (i. 1, 2, to 48.)

3 Hutcheson, ut sup. (i. 48 to 49.) If, however, any Justice were omit. ted in a commission issued after his own nomination, and were afterwards re-appointed in the same reign, the break in his holding of office would no doubt make it proper for him to be sworn under the last appointment.

1. Under Commission. The first branch (or assignment) of the commission, relates to the administrative and ministerial duties of Justices, in regard to the prevention and punishment of breaches of the peace.

The second branch (or assignment) regards their judicial capacity, with respect to trial for crimes and minor offences.

The commission further contains a charge to the Justices to hold courts for the purpose of trying matters within their cognizance;

But it says nothing of civil jurisdiction.

2. By Statute. By various statutes Justices are invested with criminal or police jurisdiction in actions connected with rural policy, besides the game laws, and highways, and in many revenue matters.

Justices have extensive administrative duties entrusted to them in regard to highways, and to the granting of licenses for sale of spirituous liquors, &c. &c.

Their civil jurisdiction has been chiefly conferred on them by the Small Debt Act, which empowers them to decide without appeal, in cases where the subject in dispute is of trifling amount.

3. By Usage. In addition to questions under the Small Debt Act, Justices judge with regard both to the aliment of natural

1 In some parts of Scotland, Justices seem to have arrogated to them. selves, at one period or other, the power of deciding in petty civil cases. See Hutcheson, i. 4, § 1, 2, 3. (i. 1 to 15.) But the first Small Debt Aet was the 35 Geo. III. c. 123, which was merely experimental, and of but five years' endurance. The first perpetual statute was the 39 and 40 Geo. III.

C. 46.

children ; and to servants’ wages : their jurisdiction in the former, depending wholly on usage; and, in the latter, partly on the same, but partly on statute.

4. Territory. The powers of Justices are, properly speaking, limited to the boundaries of their respective counties :

But may (as the commission bears) be exercised “ as well within liberties as without;' hence the Justices of Mid-Lothian, in which Edinburgh is situated, act within the burgh, although there are separate Justices for the county of the city itself, as it is termed.

Acts merely ministerial, and those of voluntary jurisdiction, may be performed anywhere. The taking of affidavits is the most common example of the latter.

5. Number competent to Act. A single Justice may act in administrative and ministerial matters,

But two Justices must be present to form a bench for judicial procedure, unless in particular exceptions ;

And, in cases of wreck, certain proceedings must be with the concurrence of three Justices. (See Wrecks.)

The commission seems to contemplate Justices having the aid of Juries in some instances, and acting under the direction of superior Judges in others; but neither view is realized in Scottish practice.

6. Expenses of Justices. Justices are entitled to receive indemnification for money properly disbursed by them on account of the public service, 3

2 Ibid.

1 See Commission, in Appendix.
3 See Hutcheson i. I, § 8. (i. 49, 50.)

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