by jury, but the practice has become very unusual.1 Magistrates of royal burghs may imprison for civil debts.

Burgh courts, whether held by magistrates in virtue of their office, or as police judges appointed by act of parliament, have the power of punishing by fine or imprisonment, summarily and without juries, in all police offences, or those tending to disturb, by violence or irregular habits, the peace of the town.2 These offences may be generally enumerated under brawls, assaults, or outrages on the streets, in which no very serious or permanent injury has been inflicted, the keeping disorderly houses, &c. No definition appears to exist either as to the precise extent of crime which may be so tried, or as to the exact amount of punishment which may be inflicted, and it seems to lie with the discretion of magistrates to restrict their trials to petty offences, and to make the punishments moderate and correctional.

Regalities and Baronies.-The magistrates and councils of royal burghs are frequently superiors of burghs of regality and barony, exercising within their bounds powers somewhat similar to those which they enjoy in their own burghs.3 The authority exercised by individual superiors of regalities and baronies was nearly altogether abolished by the Jurisdiction act of 20th Geo. II. (See Part III.) The magistrates of such burghs were, however, permitted to retain such authority as they might hold, not as stewards of the superior, but in their own corporate capacity. The extent of the jurisdiction they thus hold it is not easy to define. In civil questions it is probably inferior to that of royal burghs; in matters of police it would appear to be similar.

SECT. 2.-Dean of Guild.

The authority of this officer, whose position as a member of the municipal corporation is considered further on, is generally exercised in a court, of which he is either the sole or the principal judge, according to usage. The proceedings, when they are not of a simply routine character, are generally suggested by the legal assessors of the burgh. Some deans are assisted by a council, who inspect premises, and act somewhat in the manner of a jury on a view. In Edinburgh, and probably in some other towns, it is unusual for private parties to prosecute:-there is a procurator fiscal, or public prosecutor, attached to the court, who

1 A Prac. 61.-2 Ibid.-3 20 Geo. II. c. 43, § 26.- Ibid. § 27.

"It

hears complaints, and prosecutes them if he thinks fit. belongs to the Dean of Guild to take care that buildings within burgh be agreeable to law, neither encroaching on private property nor on the public streets or passages; and that houses in danger of falling be thrown down." 1,

1

By an act of the reign of Charles II. the magistrates of burghs are authorized to enforce the repairing or rebuilding of ruinous houses, and are invested with powers (on the owners dissenting or not being forthcoming) to dispose of the buildings to persons who will obey their injunction, or to execute the repairs and levy the cost on the owners.2 The application of this statute, so far as it is enforced, rests with the Dean of Guild, partly as a judicial, partly as an executive officer. The Dean of Guild of Edinburgh is entrusted with the enforcement of the act (1698, c. 8) which prospectively restricts the height of buildings in the city to "five stories above the causeway," and contains other building regulations, which, like the old building acts of London, have chiefly in view the protection of the city from fire.

In conformity with the practice of the city of Edinburgh, no building can be erected, or taken down, or materially altered, without a warrant from the Dean of Guild Court, which is only granted when the immediate neighbouring proprietors of the applicant, and others ex facie interested in the alteration, are cited, and have an opportunity of being heard for their interest.*

This court cannot easily enforce its jurisdiction when it is resisted; and it is difficult to give any distinct view of the extent of its authority, which is chiefly of a traditionary character, sanctioned by sufferance and habit.

It has been decided that the authority of the Dean is limited to questions in which the construction of buildings is involved, and does not extend to the purposes for which they are used.3 Where there was both a Dean of Guild's and a Magistrate's Court, it was held in the particular circumstances, and appears to have been laid down as a general rule, that the Dean of Guild's jurisdiction was not exclusive of that of the Bailie Court in questions as to the taking down of party walls.1

1 E. I. iv. 25. 1663, c. 6. See an inquiry by the author regarding the functions of the Dean of Guild in a report to the Poor Law Commissioners of England on the state of the law for the preservation of the public health in Scotland, 1841.-3 Donaldson v. Pattison, 14th November 1834.—1 Milne v. Melville, 27th November 1841.

CHAPTER VII.

JUSTICES OF THE PEACE.

SECT. 1.-Constitution.

JUSTICES of the Peace are officers appointed by commission passing under the great seal, who are empowered to keep the peace, and decide in certain matters of law within their districts, and to certify certain acts (such as the making of affidavits) over the whole country. They were introduced by act 1587, c. 82, and, after various improvements, were, immediately after the Union, vested in general terms with the same powers held by justices of the peace in England.1 Some of these are, however, incompatible with the judicial system of Scotland.

Qualification.-No pecuniary or property qualification is requisite for holding this office in Scotland, though certain restrictions are generally observed in the commissions of the different counties.2 No procurator before an inferior court can act as a justice of peace.3

Oath. Before entering on their office, justices must make oath faithfully to perform their duties, and must likewise take the oaths imposed on persons in public trust. The parchment roll containing the oaths and the subscriptions is kept among the records of the sessions.5 An individual is not compelled to take the oaths twice in the same reign, though named in a second commission.6 Those who have delayed to take the oaths are indemnified by the annual act of indemnity, which does not, however, exempt justices of the peace from the penalties to which they are subject, acting as such without being possessed of the qualification. required by the laws now in force,"7-a condition which would seem only applicable to England, where there is a money qualification.

for

Each commission of the peace, which would in course of law fall with the death of the sovereign who granted it, is appointed by statute to endure for six months thereafter, unless revoked by the successor. Certain officials are in

16 Anne, c. 6, § 2.-2 Hutch. J. P. i. 42. IV. c. 48, § 27.4 Hutch. J. P. i. 44. Tait's i. 49.67 Geo. III. c. 9.-1 & 2 Vict. c. Anne, st. i. c. 8, § 2. 6 Anne, c. 6, § 2.

Tait's J. P. 264.-36 Geo. J. P. 265.-5 Hutch. J. P. 16, § 4.- English Act, 1

cluded in all the commissions, these are, all privy councillors, the Judges of the Court of Session and Justiciary, and the Lord Advocate and Solicitor General for the time being; the other names are those of persons connected with the respective counties. Justices of the peace perform their duties gratuitously. By old statutes, they were appointed to receive 40s. Scots for every day of their abode (provided they did not exceed three) at sessions; but these acts have fallen into desuetude.2 Justices are remunerated for their pecuniary disbursements by the exchequer, or from the rogue money.3

Liabilities.-Justices of the peace may be prosecuted, either civilly or criminally, for malversation. It has been said that "they are not liable in damages, still less in punishment, although they act illegally, unless they likewise act corruptly;" but, unless in as far as they are protected by statute, there is no doubt that they are responsible for illegalities. For their special protection from the consequence of mere informalities, it is enacted that, in case a conviction or other act of justices is quashed, the pursuer can have no higher damages (besides the recovery of any penalty that may have been levied on him) than twopence, and no costs, unless the action be grounded on malice, and want of probable cause; and that he will not be entitled to recover any penalty that may have been levied against him, or any costs, if the justice prove him to have been guilty of the offence, and not to have received any greater punishment than that assigned by law. Where a justice stated, during a trial for poaching, that the defender had committed thefts, it was decided by the House of Lords, that any action of damages must be founded on a charge of malice, and that the malice cannot be inferred from the language employed, but must be separately proved. Justices are liable to penalties for mistakes in the application of the liberation act 1701. (See Index, Liberation, Bail.)

SECT. 2.-Jurisdiction.

The Commission, in the first place, authorizes the justices to enforce the statutes for the preservation of the peace, and

Tait's J. P. 6241.-2 617, c. 8, § 25. 1661, c. 38.-3 Hutch. J. P. i. 50. Tait's J. P. 272.-4 Hutch. J. P. i. 65.—5 Rae v. Sinclair, 12th July 1838. Macfarlane, 73. See the Law of Private Rights, Part XIV. Chap. II. $ 4.-6 43 Geo. III. c. 14), § 1, (found to extend to Scotland in Gibsons v. Murdoch, &c., 18th June 1817.)-7 Ibid. § 2.- Allardyce, &c. v. Robertson, 8th April 1830. 4 W. & S. 102.

B

to cause all persons who have used threats to others to give security for their good behaviour. This gives power to a single justice, either on the requisition of a party entitled to prosecute, or on information, to grant warrants for searching for stolen goods, apprehending offenders, &c., and to bring before him persons who threaten to commit any breach of the peace, and compel them to find security to keep the peace.

The Commission, following the form of that of England (which was accommodated to the peculiar usages of that country) next gives jurisdiction to the justices, or any two of them, in "all and singular capital crimes, poisonings, enchantments, sorceries, arts magic, trespasses, forestallings, regratings, engrossings, extortions, &c. ;" and authority to punish "by fines, ransoms, amerciaments, forfeitures, and other means.' "21 In England, it is held that they "have jurisdiction over all misdemeanours, except forgery and perjury, by the common law; as these two offences were not considered to be breaches of the peace, which it was the chief object of the institution of the commission of the peace to preserve." In Scotland, the jurisdiction of the justices has been in practice much more limited, and they have never judged in such offences as require the intervention of a jury.3 "They seem, however, competent to judge in all petty crimes tending to the disturbance of public tranquillity (except defamation not accompanied by a threatening of a breach of the peace), where the libel concludes only for fine or imprisonment, or perhaps banishment from the county,+ particularly breaches of the peace, and petty acts of theft or pickery."4

Limits of Authority.-Mr Baron Hume considers the precise limits of the powers of justices very doubtful. The commission provides that, in cases of difficulty, the justices shall decide only in presence of a supreme criminal judge; but in Scotland it has been usual to consider this precaution unnecessary, on account of the supposed unimportance of the questions decided by justices.6

Jurisdiction by Statute.-Independently of the powers thus conferred on them by the commission, the justices have jurisdiction in many cases, by special act of parliament, e. g. as to Planting and enclosing, Customs, Excise, Highways, Public houses, Theatres, Stage-carriages, Weights and measures, Cruelty to animals, Game, Fishings, Nuisances, the Sale of

* See Index, Warrant, Commitment.- Hutch. J. P. iv. 3.- Bl. c. (1830) iv. 271, n. 3 Hutch. J. P. i. 163.-+ See above, p. 20.- Tait's J. P. 268.5 H. C. ii. 70.- Tait's J. P. 269.