CHAP. II. Of the Sessions of the Peace. I. WE E are now arrived at what Lambard calls a "thofe "matters of greater weight which do require "the folemne bench and figure of judgment." But the feffions of the peace are feldom without the aid of skilful and experienced justices; to whom written inftructions, to use the language of the fame author, are only fetting a candle in the funfhine, and rather bewray want " in the writer, than bring help or light unto them "." HERE, therefore, notwithstanding the importance of the fubject, a minute explanatory detail may not be fo practically indispensible as even in leffer matters of extra-feffional bufinefs, where the justice of peace may be called to act individually, on the fpur of the moment, apart from his learned brethren, and experienced officers. It would be a defect, however, in this work, to omit fo important and extenfive a branch of the duty of this magiftracy. But it must be entered upon with the more caution and diffidence, and will be received with the more indulgence, that the § 1. THEIR CONSTITU POWERS IN Scottish feffions of the peace have been far from being so fortunate as the English; which are copioufly, accurately, TION AND and minutely, explained, by a fucceffion of authors of eftablished reputation. The authority of books, therefore, cannot, it will readily occur, always be appealed to throughout this explanation; which indeed chiefly results from attentively confidering, and carefully comparing together, the accounts of the practice of their refpective jurisdictions, obligingly communicated from every quarter, and almost every county in Scotland, by the gentlemen who hold the office of clerks of the peace. The feffions of the peace defined. Court of record, THE feffions of the peace, according to the English lawis " yers, a court of record, holden by two or more justices "of the peace, whereof one is of the quorum, for the ex"ecution of the authority given them by the commif"fion of the peace, and certain statutes and acts of parlia "ment "." THE Scottish feffions of the peace differ confiderably from the English, as well in the questions as the manner in which they exercise jurisdiction. The definition, however, may perhaps be fafely adopted by us, at least with fome little explanation. But a difficulty occurs at the very threshold. A court of record is not a native term of Scottish law. Our own what is it? writers, therefore, have not defined or explained it. Lord Stair, who once uses the term, feems to confider it as meaning a court, in whofe books deeds are ufually recorded. "Baron courts (says his lordship) are not courts of record, "wherein writs are ufually registered "." If this be the criterion of courts of record, it seems to exclude the feffions of the peace. Writs are not usually registered in their books. They cannot be registered therein either for personal execution, which does not follow upon their decrees in civil mat Dalt. c. 185. Burns, tit. Seffions. b B. ii, tit. 3, § 63. THEIR POWERS IN GENERAL. ters, nor even for confervation merely; which the ftatute of king William, 1685, c. 38, difallows in the cafe of incompetent courts. Some writs, indeed, are fpecially order- TION AND ed to be entered on record by the clerk of the justices. As, for example, letters of epifcopal ordination; of which the extract unquestionably bears faith. But a court of record, according to Sir William Blackstone, is," that "where the acts and judicial proceedings are inrolled in "parchment for a perpetual memorial and teftimony: which "rolls are called the records of the court; and are of such "high and fupereminent authority that their truth is not "to be called in queftion. For it is a fettled rule and "maxim, that nothing shall be averred against a record; shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it "fhall be tried by nothing but itself; that is, upon bare in"spection whether there be any fuch record or no, elfe "there would be no end of difputes; whereas the proceedings in courts not of record, may be tried as to the " truth of their existenee, or having actually been had by a jury, like other matters of fact, and not by mere infpec❝tion d " " ་ " nor EVERY part of this description does not apply to the Scottish feffions. There is no cuftos rotulorum. Neither are their acts taken down in parchment-rolls. In general, however, their procedure is entered by the clerk in a federunt-book, and authenticated by the fubfcription of the prefiding juftice. Extracts are given out, either of the last interlocutor, or, if it be wished, of the whole procedure. In the ordinary juftice of peace court, the proof generally is in writing. The proceffes are all preserved. a See below, § 10. See above, cap. 1, § 10. I c B. iii, ch. 3, P. 24. d Woodefon, vol. i, lect. 4, p. 99. $ I. THEIR CONSTITU are the "All courts of record," fays Blackstone 2, "king's courts, in right of his crown and royal dignity, and TION AND "therefore no other court has authority to fine or imprison; POWERS IN "fo that the very erection of a new jurisdiction, with GENERAL. power of fine or imprisonment, makes it instantly a court "of record." And, 66 on the other hand," adds Mr. Woodefon ","inferior courts not of record cannot hold pleas "for trefpafs, vi et armis, because they cannot affefs a fine." Carth. 108." THE decrees of the justices in civil matters are no ground of personal diligence, but of poinding only. But, as criminal judges, they can both fine and imprison. Profecutions for affault and battery, which feem to correfpond to the pleas for trespass, vi et armis, are not only competent before them, but form the chief and most appropriate fubject of their jurifdiction. In this view alfo, the defcription would appear to belong to them. How many Two juftices, by the exprefs words of the commiffion of neceffary to conftitute a the peace, are fufficient here, as well as in England, to confeflions. stitute a regular court of sessions of the peace. That part of the defcription, by which one of them must be of the quorum? quorum, has been already explained 4. One of the For execu tion of their A COURT of feffions of the peace being thus a court held general du- for the execution of their general duty, it is not constituted by two or more juftices meeting for inquiry only, or for the ty. a Woodefon, vol. i, lect. 4, p. 99. C c In the cafe of Fullerton against Hamilton, 1714, No. 19, reported by prefident Dalrymple, the court of feffion, proceeding upon the words of the act 1661, found three juftices neceffary to constitute a quorum; while, in practice, courts were fometimes held by one juftice. Both thofe errors have been corrected by fubfequent decifions. 1730, Dec. Reid against Finlayson. Dict. Decif. tit. Jurifdiction. d See chapter 1, § 7. difcharge of any particular fervice, or to inquire, hear, and determine, of a riot, by virtue of the ftatute, 13 Henry IV. fellions de of the quar THE Court of general quarter-feffions is defcribed by lord QuarterBankton P, as "the quarterly meeting of the juftices of fined. "peace of a whole county, at the times mentioned in their "commiffion, authorifed by the ftatutes." The ftatute Time for 1661, cap. 12, ordains the juftices to meet four times in the the meeting year, viz. the first Tuesday of March, May, and August, ter-session. and the last Tuesday of October. While this statute directs the general quarter-feffions to meet on the days above mentioned, it does not annul their meetings if they be held upon fuch other periods as may better fuit the conveniency Act only of any particular county. It fhews, however, the defire of directory. the legislature, that the meetings of the feffions should be regularly held at ftated and known times; much inconveniency having arifen from the loofe and irregular practice which formerly obtained in England. In Scotland, the fefficns, almost universally, meet upon the days specified in the act. rum at If a quorum does not meet on the day appointed, the If no quoquarter-feflions may be held any other day within that quar- tends. ter of the year. fions. THE quarterly meetings are called the quarter-feffions, or General rather the general quarter-feffions; and may adjourn from quarter-feftime to time as may appear neceffary. The adjourned meetings are termed general feffions; or, if they be held for General fome particular piece of bufinefs, special feffions. Lanibard, ch. iv, § 1. By the law of England, the quarter-feffions of the peace are held gerally four times in the year, viz. Vel I. in the first week after the feaft of St. E feffions. Special feffions. |