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The History of Old Dundee
The Magistrates Court


The Head Court was formed of all the Magistrates and Councillors, who usually met once a year under that designation, to ratify and approve "all lowable acts rna(le be them and their predecessors, and observit and 1.:ee1)it be prescription; and also of new" to make what further general ordinances they considered necessary for the interest of the common weal. The ordinary Court for disposing of civil causes, consisted of the Provost and Bailies, who met once a week, or as often as occasion required. The explicit and sensible rules devised for ordering their proceedings, show that pains were taken to secure the due administration of justice.

It was found that diverse pursuers who went to the Court for remeid of wrongs, were subjected to "grite extortion be syndrie persons quha being pursuit, fraudfully absentit their selves unto the hour of twelve when the Court was near risen, and the judges might do na process; and then comperit for safety of their unlaw, in grite defraud and hurt of the commonwealth; for the evasion quhair of" it was ordained that when a person "beis attachit to compeir in the tolbuith to ony lawful day, then baith the pursuer and defender shall compeir at the hour of cause—quhilk is ten hours—and they failing when they are thrice callit, the Bailie sail unlaw them instantly or any other claim or bill be caliit, as if they had not compeirit that day." Then "because there has been usit this lang time bypast, that when a person had his action till intend before the Provost and Bailies, howbeit were never sa small, or that his adversar were haldin to compeir, or ,justice micht be had against him, he belmoovit to be warnit thrice and thrice unlawit," and only after "the fourth time [could be] proceedit against; through the quhilk delay, mony just actions were lost be the pursuers, and tynt there geir therethrow, against the guid order usit in all other burrows of the realm; therefor, and for shorting of the process, it was ordanit that ony person being lawfully waruit, and failing, sall incontinent be wainit to compeir the morn, and gif lie then fail, the IBailics sall proceed to probation." And because "in time bygane the luir in their actions have been frustrat and-heavily hurt with cost and expenses, which be lang process have been equal or above the principal soum ; therefor it was or(lanit that the judges sail receive the complaint of the puir first, and before others, and gif the claim be ten shillings or within, and in ane soum nocht dividt, the same to be receivit but bill;' and gif the defender compeir nocht, it sail be lesum for the process to pass likeas he had been chargit be writ." Also, for "mair expedition of justice nor lies been usit in times past, the J3ailies, and in special the clerk, shall every ,judgement day be in the toibuith at ten hours before noon, and all pursuers also or eleven hours, othcrways their actions to be uncailit that day; and judgement sail proceed against all defenders nocht compeinng immediately ofter the strikin of eleven hours, and they nocht to be heard gif they come theirefter, but to be poyndit for their disobedience, because they came nocht at the time appomtit."

Persons pleading in Court were required not to misuse their liberty of speech, and try to make the worse appear the better reason. "Gif ony pairty, pursuer or defender, pleads in the tolbuith before the Provost and Bailies be the space of three dyets, then, or the interloquitor, or expremet be the decreit, ilk ane of the paim'ties sail give in the Bailies' hands audit shillings;" and he that has been found "to have pleadit calumniously or wrangously, to tyne his aucht shillings with all expenses made in the process, and the pairty committing na offence to be restorit." Neither were they to slander their adversaries, for "quha in presence of the judge" uses to "his pairty oiiy manner of blasphemous talk or irreverent speaking, he sail pay to the common guid twenty shillings, with amends to the pairty." And again, "na person shall presume to injure or blaspheme his pairty judicially at the bar, and quha sall be fund to do in the contrair, sail pay to the kirk wark five pounds, by satisfaction to the panty." Nor were they to question the decision of the Court unless their own hands were clean, for "gif ony speaks contemptuous of the judgement, and theirefter it be fund that lie lies either pursuit, defendit, or promo-60 unjustly, he sail then tyne his freedom."

Those having business in the Court were obliged to behave with deference. "No person quhilk pursues actions, shall presume to speak without lie be outwith the bar, and that with reverence as becomes him." And again, no one "resorting to the tolbuith shall pretend to enter within the inner bar thereof, but the procurators shall stand at the back of the inner bar and plead their actions reverently as becomes; and na pairty, pursuer or defender, shall come within the utter bar until lie be callit, and efterwards shall remove incontinent; under the pain to the pursuer," that his "action sail nocht be callit for fourteen days thairefter, and to the defender, that he sall pay eight shillings for his eontemption, or remain in ward until he pay the sarnyn."

Already some of the burgesses, in contempt of their own judges, had been carrying litigations into other courts, especially to that of the Sheriff of the shire. This was most ofThnsive to the honour of the burgh, and caused much indignation ; but although repeated injunc- Lions were issued against it, the i)1ctice does not appear to have been discontinued, until Charles I. granted to the Provost and Bailies the power of Sheriffihip within themselves. It was now enacted " that the magistrates and officers, baith superior and inferior, be reverencit, obeyit, and maintenit in their offices as becomes;" and that only" their jurisdiction and privilege, laws and judgeinents be socht be the inhabitants;" who shall "pass noways to seek juistice in civil causes at any other judge within the realm of Scotland; and quha ever does in the contrair, saIl for the first fault pay ten merks, and for the second tyne his libertie within the burgh for ever."

The Bailies, iii the performance of their onerous duties, passed every morning through the burgh, and as in patriarchal times, ad- ministered justice within the gates. To enable them to bear the sword with effect, they themselves needed firmness, and required from all good citizens ready obedience and honour. "Quhasoever beis fund committing ony deforcement or disobedience to the Magistrates, his name sail incontinent be put out of the lokkit book "(the burgess roll), "and he sall never bruik privilege nor freedom within the burgh." All were bound to fortify and defend them. " Gif it chance that they or any officers of the burgh quhatsumever, be contemptuit, troublit, or disobeyit be ony manner of person, then incontinent the neighbours that happen to have knowledge thereof saIl rise and assist them ;" and whosoever "absents himself and takes nocht pairt as said is, sail tyne his freedom, and be osteernit as anc unfaithful neighbour in time coming." Subsequently the duty was again enforced. "Quhen ever Oily Bailies or officers lies trouble or contradiction in using of their office and putting of their acts to execution, then incontinent, all neigh- bours that are near by, shall concur and assist with them in using and exercising of their office against all persons disobedients, without exception either for friendship or favour; under the pain, that the freeman sail lose his libertie, and the unfreeman be banishit for ever."

The officers who accompanied the magistrates througgli the streets upon their mission of justice, had at one time been "very negligent" in attending upon them, and were thereafter warned that if they again neglected their duty they should be "punishit in their persons, and if the fault were "rite and exorbitant, deprived of office;" and they were "ordanit to be ready at all occasions on the lie Calsay of the burgh, ilk day twa of them, to attend in manner foresaid, and quha beis fundin contravening, to be incarcerat for the space of twa days, and thereafter to be burdenit with the attendance for twa days." They were required to enforce the judgments of the magistrates, and "put all acts given to them to execution within eight days, and "if they can nocht, to come incontinent to the Bailie of their quarter and shaw the cause, that remeid may be providit."

In the performance of their duties the magistrates were themselves required to be diligent, to do justice, and to love mercy; "to be every I judicial day in the tolbuith for doing of business before the hour of eleven afore noon, under the pain of six pennies, to be upliftit sa oft as they fail, and distribut to the puir;" and afterwards it was enacted, that "gif ony of them or the clerk fail at the time appointit, they or ony of them sall pay twa shillings, and gif they refuse, remain in ward until payment thereof." To guide their decisions, they were instructed "to have the authentic copie of the common statutes for their information, so that they sail poynd na innocent in executing of their office."


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