§ 10. OFFICERS X. ONE of the juftices is appointed by the king cuftos rotulrum, and invested with special powers. This office is not in ufe amongst us. The name occurs however in Cromwell's JUSTICES. inftructions to the justices of peace, as well as in the two general ftatutes, 1617 and 1661'. THE clerk of the justices, or quarter-feffions, is named by Clerk. the fecretary of ftatem. clerk be a THE clerks, according to lord Bankton ", of all inferior Must the courts ought to be notaries. His lordship founds his opi- notary? upon two ftatutes of James V°, and upon the authority of Craig, who mentions the reduction of a baron decree, because the clerk was not a notary; and exprefsly fays, notarius in omnibus judiciis intervenire debet, qui quæ dicuntur et fiunt in acta curiæ redigat P. 1 That we had fuch a cuftos rotu"larum (obferves Mr. Forbes, Juftice of Peace, preface, p. 4.) as they have in England, is clear from "the first commiffion for keeping of *the peace within the shire of Edin "burgh, under the great feal, dated 28th Auguft 1610; wherein Sir "James Foulis of Collingtoun, one "of the juftices of peace therein "ramed, was appointed cuftos rotulorum, cum poteftate nominandi “amanuenfem, feu fcribam, qui fcripta omnia ad hujufce commiflionis "executionem fpectantia in notam *redigat, et publicis fchedis infe rat." Parl. Ja. VII, 1686, ch. 20. The act 1685, cap. 16, inter alia, empowertd justices to nominate their own clerk. But this claufe was doubly repealed; first, by the laft-mentioned at 1686, and afterwards by the general refciffory act 1690, c. 28. n B. iv. ch. 4, § 9. 1540, ch. 78 and 81. P Lib. iii. dig. 7, § 20. Hic autem fcriba, five clericus, femper notarius effe debet, ut fenatus, in caufa inter dominum de Keir et Hamiltonum de Pardovan interlocutus, nam cam fententiam quam Barocuriæ pronunciaverat retractavit, ex ea fola caufa, quod clericus curiæ non fuiffet notarius. Ibid. Notaries derive their name from taking notes of things to extend more regularly afterwards (ibid. l. ii, d. 7. § 7.) The introduction of the folemnity of the inftruments of notaries, was, because of old few could write, and the impreffion of feals was eafily imitated (Stair, b. i, t. 3.) Notaries were either apoftolical or imperial. The former were established in the first ages of christianity to preferve the fayings of the martyrs. And afterwards, deriving their au $ 10. OFFICERS. THE clerk of the feffions, though an officer of inferior Duty of the dignity and importance to the cuftos rotulorum in England, clerk. thority from the pope, prevailed in all places under the papal hierarchy. They appear to have been recognised in Scotland before the reign of James III; for the act formerly mentioned, requiring all notaries to be appointed by the king, provides, " that «full faith be given to the papall "notaries in time bygane in all their "inftrumentes." After the reformation, minifters were prohibited from acting as "notaries in ony matters "(the making of teftamentes only excepted.)" James VI. c. 133, 1584. Imperial notaries derived their authority from the civil power. Some lawyers pretended that the creation of notaries belonged to the emperor, but not to kings. Our ftatute therefore, James III, c. 30 (1469), in reference to this doctrine, declares, that "notars fuld be maid be the king, "and not be the emperour." Various ftatutes have been fince paffed, refpecting the admiffion and behaviour of notaries. By an act of queen Mary's (1563, c. 79), all no. taries were to "be made by the "queen's letters, and thereafter exa"mined and admitted by the lords "of feffion." But now" (fir Geo. Mackenzie obferves, p. 168) “ they "need no letters from the king, but "depend upon the clerk of register "and his depute, the clerk to the "notaries. The clerks of feffion are, «by their admission as fuch, notars, "though they be not admitted in "manner mentioned in this act." An act of federunt (1595, Dec. 31.) k anent the admiffion of notars, provides, " that thay haif fum honest in"dustrie and moyane to leve by the "exercife of that office: That they "be paffed the twintie-fyft yeir of "their aige, and be hable to wreat "weill and correctlie, and to under"ftand and form onie evident in La"tin or Inglis, belonging to the of"fice of an notar; the particulars of "which evidentis the faidis lords "remittis to the difcretion of the "faidis examinators and ficklike, that "they have been fervandes or pren"tifes by the fspace of five yiers of "before, with fome honeft and fa"mous notar, and produce his maif"ter's teftimonial of his honeft and "dewtiful behaviour and diligence, "the tyme of his fervice, and the "yeir of his age; and forder, to try "thaime on ony uther requifitt head "that the faides examinatours finds " meitt; and efter dew triell had be "thame in the premiffes, the faidis "lordis ordanis thame to report in "thair prefence the hability or inha"bilitie of the perfon prefentit, to "the effect they may admit or refuis "according thairto the prefenta"tion." By another act of federunt, notaries are prohibited from subscribing writs for any person who cannot write, unless they know that the perfons for whom they subscribe are the perfons defigned in the writ, or that the fame is attested by witnesses who fubfcribe the writ, or by other credible perfons; and the notary shall mention this when he subscribes, 21st July 1688. In the cafe of a deed ex has the keeping of the books, and the registration of things $10. in them. OFFICERS. CLERKS of inferior courts were prohibited, by a statute Clerk. of James VII, to register in their books any thing in which the court is not competent, under pain of deprivation, and being fined five hundred merks. Br particular British ftatutes, fome matters which thejustices have no further cognisance of, are ordained to be recorded in the books of the feffions. As, for example, by 33 Geo. III, c. 54, the regulations of friendly focieties must be exhibited in writing to the justices at the feffions, or adjournment thereof, for the county and place where such society fhall be established; and if approved of, and confirmed by the juftices, fhall be figned by the clerk of the peace at fach feffions; and a duplicate thereof on parchment shall be deposited with, and filed by, the clerk of the peace at fuch feffions without fee; besides, persons are ordained to qualify themselves by taking certain oaths before the feffions. THE charge of all this business belongs to the office of derk. 26 GEO. II, cap. 14, after regulating the fees to be exacted in the juftice of peace court, ordains a table thereof to be depofited with the clerk of the peace, who is to cause a true copy to be constantly kept in a confpicuous part of the room where the feffions are held, under the penalty of Icl. ecuted by a perfon who is blind, or who can neither read nor write, the reading it over to him, in prefence of the witneffes, was found, by a late decifion, not to be a folemnity neceffary to be mentioned by the notary in his doquet, though it may be pro per and neceffary to take place as a § Ic. OFFICERS. THE feffions are ordained to appoint a fufficient collector Collector. for uplifting the fines and penalties, which they have power to impofe. But this officer is now more generally known under the name of fiscal; a term which does not occur in any of our statutes. The collector is named by the feffions, levies the fines, and difburfes neceffary expences, at the command of the juftices. As public profecutor, he gives his inftance, or concurrence, in the fteps neceffary to be taken for the apprehenfion or profecution of delinquents '. Who act as procurators THE procurators of the fheriff and other courts practife before the before the juftices; regularly, however, they should be enterjustices. ed by the feffions. The practitioners of the fupreme courts r 1661, § 26. f It appears from the records of the juftices of the peace of the county of Edinburgh, that the three offices of clerk, collector, and fifçal, were originally held at the fame time by different perfons. It was found convenient, and foon became customary, to appoint one perfon to the two last offices. The feparate office of collector thus grew into difuetude. But, for fome time, after it had become customary for both offices to be held by the fame individual, there still continued to be a feparate appointment to each. The fiscal appears, for the first time, in those records, upon the 9th September 1707: "Thereafter, it " was reprefented, that there ought "to be a fiscal to the justices of peace, which had always a relation "to the collector's office; and Ro"bert Thomson, being chofen collec"tor formerly, it was thought fit "that he fhould be chofen fifcal; "whereupon the faid Robert Thom"fon being called, and demanded, if "he would accept of the faid office, "he judicially accepted the fame; any fifcal may do, and to fubftitute "fit perfons at the feveral courts "where he cannot attend himself, "who were to be accountable to "him; and thereupon the faid Ro"bert Thomson took inftruments." By the 22 Geo. II, c. 46, no perfon fhall act as folicitor, attorney, or agent, or fue out any process at any general or quarter-feflions, either with refpect to matters of a criminal or civil nature, unless he is admitted and inrolled according to law; on pain of 50l. to him who fhall fue in twelve months, with treble costs: and if any attorney fhall permit any perfon to make ufe of his name in the faid court, he fhall, in like manner, forfeit sol. This ftatute has never been understood to apply to Scotland. § 10. OF THE occafionally practife before the feffions of the peace. In the records of the feffions of the peace, we meet with the OFFICERS first legal names that have appeared in this country, as Oc- JUSTICES. cafional pleaders in that court. CONSTABLES are appointed by the juftices of peace as Constables. their officers for executing their warrants, &c. But the various important duties of that office will be more fully explained below. DIVISION DISTRICTS a diftrict XI. EXTENSIVE Counties are usually divided into districts, § II. for the more frequent and speedy administration of justice. OF COUNBut the jurifdiction of each juftice remains entire over the TIES INTO whole county. The fentence of a district meeting, there- Does the fore, will bind perfons who do not live within the district. fentence of The juftices of the peace of the fhire of Ayr divided themfelves into several districts. The juftices of the diftricts of bind perfons living Cunningham impofed a penalty upon certain perfons who out of the lived in the diftrict of Kyle. This was objected to, and the answer made for the justices of the former district was, that they are juftices of the peace over the whole fhire; and that the divifion into districts is only for the more frequent meeting and speedy administration of justice; and the purfuers their refidence was within two or three miles of the place where the court was held. The objection was not regarded ". district ? EACH diftrict has a separate clerk and fifcal. The clerk Officers for must be named by the general clerk of the feffions, to whom the district. he is accountable; and the fifcal, either by the general fiscal of the county, or by the justices. It is found extremely inconvenient not to have those public officers on the fpot in each diftrict; both to attend to the public intereft, with respect to nuisances, vagrants, and other matters of police; * Fullerton against Hamilton, 19th November 1714. Dalrymple, No. 115. |