HE fovereign is the principal confervator of the peace,

THE

by virtue of the royal dignity. The perfonal admi- King, by nistration of law is faid to have been originally in the crown, dignity. the royal the fountain of justice, from whence courts and magiftrates, either mediately or immediately, derive all their jurifdictions.

BUT the king cannot take a recognisance or fecurity for because it is a rule that no recognisance can be

Principalis jufticiarius. Lambard's Eirenarcha, book 1. c. 4 Bacon's Abridge. tit. Juftices.' Dalton's Country Justice, ch. 1.

Vol. I.

A

taken unless by a juftice either of record or by commission. In like manner, though law be still administered in his name, he cannot decide any cause but by his judges, to whom he has committed the whole of his judicial authority ".

SOME offices give a general authority to keep the peace throughout the realm. Such, according to the English lawyers, are the offices of lord chancellor, lord keeper of the great feal, the lord high fteward of England, the lord marfhal, the lord high conftable, the lord treafurer, and every juftice of the king's bench. The mafter of the rolls has it only by prescription c.

So far as these are merely English offices, they confer no fuch authority in Scotland, which is under the jurisdiction of its own laws, and magiftrates, and courts of juftice. The

b So much is this the cafe, that the ftatute Charles II. 1681, ch. 18, which, confidering that all government and jurifdiction does originally refide in bis "facred majefty, declared that his facred "majefty may by himself, or any com"miffioned by him, take cognisance "of any cafes or causes he pleases," was complained of as a grievance by the convention of cflates 1689, and repealed.

David I. fat personally in court, and is celebrated for his wisdom in deciding causes, Buch. Hift. lib. vii. It was part of the duty of the chiefs of the northern nations to prefide at judicial trials; a fa& consistent with the power of juries, and the freedom and importance of the people, under the conftitutions of the ancient Goths. Edin. Tranfactions. Essay on the origin and firutture of European governments.

Bac, Abr. tit. Juftices. Burn's ib. 4 It is furprising to find in fo refpectable a book as Comyn's Digeft of

English Law, (tit.Scotland) the following paffage, without remark or correction from the learned editor of the last edition 1800: « Scotland was held of "the king of England, and is within "the fee and feigniory of the king of

66

England." And as if it were a municipal question of English law, an appeal is made to the authority of an English law book, Plowden's Commentaries.

But this exploded claim of homage and fovereignty, which received its refutation from Craig, and, in the last age, when again revived, provoked the zealouspatriotifm of feveral champions of Scottish independency in church and ftate, is not even contended for by Lord Lyttleton, their latest writer, except to the fouth of the Forth; and how far his Lordship was from establishing it this length, is shown by Sir David Dalrymple, (Lord Hailes). Remarks on the Hiftory of Scotland, chap. ii. and Annals of Scotland, Appendix ii. No. 1.

OF THE

lords of jufticiary, fucceffors of the ancient jufticiar, fo for $1. midable in feudal times, are general confervators of the KEEPERS peace, and grant warrant to apprehend delinquents through- PEACE. out all this part of the united kingdom. The judges of the court of session, which fucceeded the daily council, a committee of parliament, are, together with his majesty's privy counsellors, the lord advocate, and fome other persons of rank and dignity, always included in the general nomination of justices of peace over all Scotland f. Neither fecretaries of ftate, nor peers as fuch, are confervators of the peace.

• See § 4

f As this nomination alfo includes the lords of jufticiary and others, who, independently of it are, like the judges of the king's bench in England, confervators of the peace, virtute officii, it is not of itself decifive evidence that the fame is not the cafe with the lords of feffion, who, when fitting in court, ast only are the supreme civil tributal, with equitable powers, resembling thofe of the lord high chancellor in England, but had anciently a very extenfive criminal jurifdiction and fuperintendence, and ftill exercife it to a certain degree, particularly in of fences against the public police, as well as are in the daily practice of granting lawburrows, a fpecies of fecurity of the peace. (See B. ii. C. 2.)

Accordingly, in the late cafe of James Reid, who was imprisoned by order of the judge of the high court of admiralty, (not a juftice of peace by commiffion) amidst other topics of argument from the bar, it was stated, by counsel of high eminence, that the nomination of the lords of feffion in the commiffion was not neceffary to give them a charge of the peace,

which they had virtute of, but
merely to invest them with those mi-
nifterial powers relative to highways
and other matters which are by fta-
tute annexed to the office of juftice
of peace.

This cafe of Reid turned chiefly on
two points: the import of the power
of courts of juftice to keep peace
within their own precincts, and how
far the judge can act in the cafe of
an offence against himself perfonally,
Papers were ordered, and ably drawn
on both sides, but the cause having
been dropped, there was no opportu
nity of obtaining the opinions of the
bench upon thefe queftions in this
interefting branch of jurifprudence,
which, in this country, has not yet,
from fucceffive judgments, attained
to the fame precifion and maturity
as in England.

Whether fecretaries of flate are juftices of peace, was debated in the cafe of the warrant granted by lord Halifax to fearch for the authors, printers, and publishers, of No. 45 of the North Briton. That warrant was found to be illegal upon the more interefting point of general warrants.

$ 1.

KEEPERS

OF TIF
PEACE.

Courts.
Sheriffs.
Magif-

THE bishop of Ely, the archbishop of York, the bifhop of Durham, are keepers of the peace within their respective bounds, by the ftatute of 27 Henry VIII. c. 24. The maby ftatute, giftrates of fome royal burghs, as Edinburgh and Aberdeen, are conftituted heritable justices of peace within their liberby charter. ties, by their charters ratified in parliament 1. All courts of justice as fuch have power to keep the peace within their own precincts. Every fheriff alfo is a principal confervator of the peace of his county. The magistrates of every royal burgh have the charge of the public peace, and authority to reprefs and punifh offences against the quiet and good order of the community. Conftables, whether high or petty, are confervators of the peace within their refpective districts. Among thefe offices the English lawyers mention that of coCoroner? roner; but in this country, though the name of hereditary coroner still adorns the titles of fome ancient families, yet the office having long ago loft all its power and jurifdiction, gives no charge of the peace *.

trates.

b Forbes's Justice, part ii. p. 2.
2. Hawkin, P. C. 33.
k So much had this office dwindled
from its ancient importance into mere
von et preterea nibil, that it was not
thought neceffary to include it in the
ftatute 20. Geo. II. relative to the pur-
chafing of the heritable jurifdictions.
On this ground the court of feffion dif-
missed a claim for a compofition of
500l. fterling made by the heritable
coroner of the fhires of Forfar and
Kincardine, February 1748.

In the cafe of any crime, it was the
duty of the coroner to employ meatures
(even by raising the county) for fecur-
ing the felon; take fummary cogni-
tion of the crime; arreft the perfons,
and fometimes the goods of perfons to
be tried; and present them to the jus-
tice-ayre, of which he was a neceffary
attendant. He had a proportion of

the fines and forfeitures with the fhe riff and king's bailie. Leges Malcomi, cap. 3, 15. Alexan. II. c. 25. James III. parl. 14. c. 102, 103, 115. James V. parl. 3. c. 5. parl. 4. c. 34. James VI. parl. 11. c. S2. See also the pa per published by Mr. Prynne (that painful and judicious antiquary, as Blackstone terms him) in his Collection of Records in the Tower, vol. iii. p. 1051. and intitled, "Ordinatio "facta per Dominum Regem fuper "ftabilitate Terræ Scotia." This cu rious document illuftrates the nature and importance of this office, fo early as the reign of Edward I. and as Mr. Prynne's work is not easily to be had that record is inferted in the Appendix, III.

At what period the office became extinct appears not fo certainly. Mr.Pinkerton fays, "the crowner, or coroner,

THE ordinary justices of the peace are named in the king's $1, commiffion for their refpective counties.

"

TION OF

II. JUSTICES of the peace, in the language of our ftatutes, DEFINI are "Godlie, wyfe, and vertuous gentlemen, of good qua- JUSTICES lity, moyen, and report, making refidence within their oF PEACE. "refpective fhyres, appointed by his majefty for keeping "his majesty's peace." According to the English lawyers, they are judges of record appointed by the king, to be juftices. within certain limits for the confervation of the peace, and for the execution of things entrusted to their charge by the commiffion and particular ftatutes m.

fioners.

THEY are named commiffioners of the peace, having their Commifauthority by the king's commiffion"; and juftices, to remind Juftices. them to do justice, which is to yield to every man his own,

"continues to attract notice even in "the reign of James V. with which his "ancient office feems to expire."(Hift. of Scotland, v. i. p. 285.) But if it no longer attracted the notice of the general historian, yet, after that peried, it is treated of by prefident Balfour, in his Practics, (p. 566, 567.) and by Sir John Skene, in his work of Crimes and Criminal Judges (c. 7-16,) as a conftitucnt part of the jadicial system still in actual exercise. With other heritable jurisdictions it was abolished by Cromwell; and though it was revived by Charles II. it never appears to have recovered the exercice of its various important lucrative powers; which in part had devolved on the new inftitution of juftices of peace, and in part were fuperfeded by the establishment of the prefent court of jufticiary, which entirely changed the method of adminitering criminal justice, and iffued its writs to macers of court, and messen