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Treatise of the Offices of Justice of the Peace; Constable; Commissioner of Supply and Commissioner under Comprehending Acts in Scotland
By Gilbert Hutcheson (1809)

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

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