EXERCISING the judgment of Solomon, a London stipendiary magistrate yesterday pondered only briefly over whether the English legal system regarded the bagpipes as a musical instrument or an instrument of war before ruling that it could be both.

He then fined the lone piper of Hampstead, 49-year-old David Brooks, #15 on each of three charges of playing the pipes on the heath without permission in May this year, and ordered him to pay #50 towards court costs.

Stipendiary magistrate Michael Johnstone, in delivering his judgment, conceded that many might not consider the bagpipes to be a musical instrument, although he said he was not saying he was one.

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It did not really matter, he pointed out.

By-law 39, governing Hampstead Heath, prohibited the playing of musical instruments, or any other instrument, without permission.

Initially, when asked to consider the legal precedent of October 2, 1746, when James Reid, born near Dundee, was convicted of treason although he had borne no weapon - only played the pipes - during the 1745 Rebellion, the stipendiary had suggested the defence barrister might like an adjournment to consider his position.

In Reid's case, the Lord Chief Justice of England had overruled a jury's verdict and dismissed their later plea for mercy by declaring that the bagpipes were an instrument of insurrection. On the strength of this, James Reid was hanged, drawn, and quartered.

Yesterday, Mr Johnstone, in suggesting the adjournment, said that if this interpretation was accurate, Mr Brooks could have been charged with carrying a dangerous weapon on the heath, and the penalty could be a prison sentence rather than a fine.

Defending barrister George Fairburn indicated that his client had not been charged with this offence and persisted with his defence.

He said the judge in Reid's trial had directed the court, and thus had set a legal precedent which Hampstead magistrates court was bound to follow.

Mr Johnstone said that if that was the case then there was a miscarriage of justice in 1746.

The magistrate said that the bagpipes could be considered both a musical instrument and instrument of war. The latter was certainly true at least up until 1945. The wording of the by-law, however, prohibited the playing of any instrument on the heath without permission.

The Corporation of London had offered Mr Brooks the opportunity to play his pipes on the heath three days a week as long as it was during specified periods and that he was confined in the bandstand.

Had he accepted this compromise, the case would not have gone to trial.

Mr Brooks, who has been playing the pipes for at least 18 years on Hampstead Heath, had previously rejected the offer. He said that if he was causing annoyance in the past, the bandstand was in a more open area so he was likely to upset more people.

Last night, Mr Brooks said: ``I might just go on as usual. They have to identify me before they can bring yet another prosecution and to do that they have to get within 100 yards.''

His legal advice was he should accept the bandstand suggestion.

The Corporation of London remained conciliatory last night. The bandstand offer made to Mr Brooks remained open if he submitted an application.

Mr Alexander Ryan, press officer for the corporation, said: ``We don't want to curtail his enjoyment.''

Although they might be reluctant to admit it, piping experts in Scotland agree with the magistrate that the bagpipes are both musical instruments and instruments of war. When this case first came to prominence and Mr Brooks became a cause celebre in piping circles, the College of Piping in Glasgow offered some words of comfort should Mr Brooks meet the same fate as James Reid: ``Well, if they hing you, dinnae you worry. We will compose a fine lament to your memory!''