SI.

THEIR

CONSTITU

POWERS IN
GENERAL.

In a court held at Edinburgh, under the fmall debt act, one of the parties having offered the evidence of a prisoner in the Canongate jail, on application by the court to the TION AND magiftrates, he was fent up from prifon, accompanied by an officer; and, after giving his evidence, was remanded back in the fame manner. Had it been the cafe of one confined for debt, at the instance of any private person, and supposing him to have contrived to escape by the way, it is not perhaps very clear how far the interference of the court would have fcreened the magiftrates from payment of the debt, even independently of any proof of actual blame or negligence in the mode of escorting him.

LORD Fountainhall mentions the cafe of one who was cited into court, to give up, by the Porteous-roll, criminal

*Porteous roll (portuis) is derived from the Latin verb portare, to carry (in French portes vous). It was the catalogue, or roll of names, to be thed at the justice ayres (itenera juftiBari), or circuit courts of jufticiary; ashrafi was the roll containing the more parcicular statement of the offences of the different malefactors. The traiftis, according to fir John Skene, was fo called, because it was committed “to the traift, faith, and credit, of the clerks and crowner; quha, gif they be truftie and faithful, fuld nought reveale, deleete, change, or alter the famin." De arborum fignificatione, v. Traifis

Porteous.

Dittay was the old word for indiament. The ancient court of justiciary was entirely itinerant, holdag juftice ayres, or circuit courts, over the whole kingdom. At Edinburgh, one was held fo late as the

reign of James VII. When a juftice
ayre was to be held at any particular
place, the old practice was for the
justiciar to iffue a brieve of dittay to
the sheriff and his deputes, directing
him to fummon to the head burgh,
or other certain place, of each ba-
rony, twelve or fifteen sufficient men
(ad hoc opus magis fufficientes), of
each tenantry or village (tenendria
feu villa), four or fix men; of each
burgh twelve or fixteen burgeffes, ac-
cording to the respective population
of the places (quantitatem locorum
et numerum perfonarum in eifdem
exiften); together with the miller,
brewer, Smith, and officer of court of
each barony "because," fays fir
George Mackenzie," it was prefum-
"ed that the best intelligence was

to be had from fuch public per"fons." The purpose of fummoning them was to the taking up of dittay ad furfum reddendum indicamenta

§ I.

THEIR

CONTSITU

POWERS IN
GENERAL.

dittays (to give information respecting criminals in order to their trial at the circuit court of jufticiary), and is taken with TION AND caption. He gives in a bill for fetting him at liberty; upon this reason, that the judges gave a protection to all who came in for giving up dittays, and fo he could not be taken. "The lords inclined to set him at liberty, and to sustain the "privilege and exemption, (being as favourable as a public "fair is) though it was founded upon law, in regard the

juftices declared and attefted it was their custom and "practice to grant fuch protections. Our brocard," (maxim) adds his lordship, "runs in the contrary to this, viz. that no"thing can take away fignet letters, fuch as caption is; but "fignet letters, viz. a fufpenfion, eodem modo unumquodq. "diffolvitur "," &c.

THE most frequent occafion of the fupreme court exercifing this power, is in the case of the fanctuary of Holyroodhoufe; from whence perfons, whofe prefence is ne

regia); that is, to give information
of the offenders within their refpec-
tive bounds. Thefe informations were
returned into the court of jufticiary;
and from them was made up the
roll of names for trial, called the
Porteous roll.

The ftatute 8 Annæ, c. 16, § 3,
abolished the ancient method of tak-
ing up dittay by the ftrefs and Por-
teous roll; and § 4 ordains informa-
tions, in order to making up of dit
tays concerning crimes, to be tried
in the circuits by prefentments, to be
made by the juices of their quar-
ter-feffions; or upon informations, to
be taken by the fheriffs, ftewarts
bailies of regalities, and their depu-
ties, magistrates of boroughs, other
inferior judges and magiftrates, who
are ordained to hold courts upon the
22d of February and aad of July, year-

ly, for the purpose of receiving in-
formation of crimes to be tried at
the enfuing circuit; and, at least 40
days before the holding of the court,
to tranfmit to the ford juftice-clerk
and his deputies, accounts, subscrib.
ed by them, of the names of the of-
fenders, the facts committed, with
the time, place, and other circum.
ftances, that may ferve to discover
the truth; as alfo, the witneffes
names, and titles of fuch writs as are
to be made ufe of at the trial. In
practice, Mr. Hume obferves, this
piece of duty has ordinarily been al-
lowed to fall into the hands of the
theriff, whofe office, fince it was new
modelled in 1748, affords more fecu.
rity than of old, for his fkill and di-
ligence in fuch matters.
Hume's
Crim. Law, v. iii, p. 31.
a 1679, Nov. 13.

THEIR
CONSTITU-

ceffary, either on their own account, or in the causes of others, are, at the difcretion of the judges, brought to court under the custody of one of the macers (officers of court), and TION AND afterwards reconveyed to the fanctuary; being protected, in POWERS IN the meanwhile, from perfonal diligence *.

GENERAL.

fions divide.

THE English lawyers ftate various cafes of difficulty from If the fefthe court fometimes happening to be divided; in which cafes the expedient recommended feems to be, to delay the matter till a full meeting of the juftices be called; or, if they should ftill be equally divided, to fubmit, or refer the matter, with the consent of parties, to a higher tribunal. But it seems to be understood in England, that, without Can they refer?. the confent of parties, they cannot refer any point to the decifion of another tribunal, but only to examine and report ↳.

THEIR

§ I. In this country the feffions of the peace fometimes refer CONSTITU. matters which they cannot conveniently overtake themselves, TION AND to a committee of their number, to examine, take evidence,

POWERS IN

GENERAL. and report. This frequently happens; for example, in the Muft they cafe of appeals to the quarter-feffions, which will come under our view afterwards.

take the

proof themfelves by commiflion.

Juftices not

THE perfons entitled to act as procurators before the sespunishable fions, have been already mentioned i.

for what

done in fef

fions.

By whom

feffions are

attended.

THE feffions are attended by the justices and clerk of the the quarter. peace, procurator-fiscal, bar-constable, and other officers. By our two general statutes *, at least one constable must attend from every parish, inftructed with a commission to anfwer for the others. By the law of England, the quarterfeffion must be attended by the jailor, that he may produce his prifoners, and receive fuch as are to be committed; and by the keeper of the house of correction, to give an account of the perfons in his cuftody. The fame defcription of perfons ought, for the fame reason, to attend the Scottish quarter-feffions; and all thofe who are bound over to answer, or to profecute, and give evidence 1.

"thing to be determined by the
"other. But in the cafe K. and
"the justices of Northampton, t. 17,
"G. III, on a motion to quash an
"order of feffion, quashing a poor
"rate," (that is altering what had
been done, and striking the pauper
off the lift),
on the ground that
"the rate was by the feffions refer-
"red to two juftices out of the ses-
"fions; and that the feffions after-
"wards adopted their opinion with-

44

66

66

out exercising their own judge

ment. Lord Mansfield said, if they "did this of their own accord, with

" out the confent of the parties, it is

"bad: but if they did it by consent "of the parties, they have done very

right; and we will never fuffer "the party, who confented to the "reference, to come here to set it "afide; and I think it fufficient if "the attorneys confented, and at"tended at the reference. And the "caufe was fent back to the fef"fions, to certify whether it was re"ferred by confent." Cal. Caf. 30. Burn, tit. Seffions.

i See chap. 1, § 15.

k 1617, and 1661.

Forbes, Juftice, part ii, c. i, § 19.

1

3

§ 2.

ORDER OF

II. THE uniform practice in England is to read, after the proclamation of the feffions, the commiffion, and fome fta- BUSINESS. tutes of peculiar importance'. This regular course never was followed in this country. It has not been usual to read any of the ftatutes at the quarter-feffions. The new commiffion is always read at the first meeting of the feffions after its arrival in the county.

THE meeting being conftituted, take up whatever bufinefs, whether public or private, is competently brought before them; first, public matters, as thofe relative to the police of the country; fuch as, bridges, road-money, &c. They receive reports from committees or district meetings; an account of fines collected by them, &c. &c.

IN fome counties it is customary to commence the quarter-feffions by reading over the intermediate federunt-books of the different district meetings. The feffions of different counties have frequently communications with one another, touching matters which require their joint co-operation; as, for example, the maintenance of the poor", repreffing va- Weights gabonds, and adjusting weights and measures. The ufual and meafform is, by forwarding to the clerks extracts of the refolu- proper

1 The king's proclamation against profanenefs and immorality is alfo to be read; and, likeways, there are divers acts of parliament required to be read in the feffions; as the 5 El. C. I, against popery; and the riot at, 1 G. c. 5: and the black act, 9 G. c. 22; and the 11 and 12 W. c. 15, about ale measures: 30 G. II, c. 3, about burying in woollen, are required to be given in charge at the feffions. And the 4 and 5 W. c. 24; 7 and 8 W. c. 32; 3 and 4 An. c. 18; and 3 G. II, c. 25, concerning jurors, are to be read in midfummer

feffions yearly. And the 2 G. II, c.
24, against bribery and corruption, in
election of members of parliament,
is to be read at every Easter sessions.

m Upon this matter much corre-
fpondence took place betwixt the
quarter-feflions of the counties of La-
nark, Linlithgow, Edinburgh, and
Hadington, about the beginning of
last century. Overtures were presented
from the juftices of Lanark; and com-
mittees, appointed by the quarter-
feffions of the county of Edinburgh
to converfe with the Lanark juftices
thereon.

ures to the

tandard.