I HAVE been the more minute in defcribing these proceedings, as there has happily been no occafion to reduce them into practice for more than a century paft; though it is not a right that merely refts in fcriptis or theory, but has formerly often been carried into execution. There are many instances, one in the reign of queen Elizabeth, two in that of James the firft, and two in that of Charles the firft, where indictments for murder have been challenged by the vice-chancellor at the affifes, and afterwards tried before the high steward by jury. The commiffions under the great feal, the sheriff's and bedell's panels, and all the other proceedings on the trial of the feveral indictments, are still extant in the archives of that university.

CHAPTER THE TWENTIETH.

OF SUMMARY CONVICTIONS.

WE

E are next, according to the plan I have laid down, to take into confideration the proceedings in the courts of criminal jurifdiction, in order to the punishment of offences. These are plain, easy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the safety of the subject are more immediately brought into jeopardy. And these proceedings are divifible into two kinds; fummary, and regular: of the former of which I fhall briefly fpeak, before we enter upon the latter, which will require a more thorough and particular examination.

By a fummary proceeding I mean principally fuch as is directed by several acts of parliament (for the common law is a ftranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there there is no intervention of a jury, but the party accufed is acquitted or condemned by the fuffrage of such person only, as the statute has appointed for his judge. An institution defigned profeffedly for the greater ease of the subject, by doing him speedy justice, and by not harraffing the freeholders with frequent and troublesome attendances to try every minute offence. But it

has

has of late been fo far extended, as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cafes. For,

And

I. Or this fummary nature are all trials of offences and frauds contrary to the laws of the excife, and other branches of the revenue: which are to be enquired into and determined by the commiffioners of the refpective departments, or by juftices of the peace in the country; officers, who are all of them appointed and removeable at the discretion of the crown. though fuch convictions are abfolutely neceffary for the due collection of the public money, and are a fpecies of mercy to the delinquents, who would be ruined by the expense and delay of frequent profecutions by indictment; and though such has ufually been the conduct of the commiffioners, as feldom (if ever) to afford juft grounds to complain of oppreffion; yet when we again confider the various and almoft innumerable branches of this revenue, which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this fummary and arbitrary jurifdiction; we shall find that the power of thefe officers of the crown over the property of the people is increased to a very formidable height.

II. ANOTHER branch of summary proceedings is that before juftices of the peace, in order to inflict divers petty pecuniary mulets, and corporal penalties, denounced by act of parliament for many disorderly offences; fuch as common fwearing, drunkennefs, vagrancy, idleness, and a vast variety of others, for which I must refer the ftudent to the justice-books formerly cited ", and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the adminiftration of justice hath however had fome mischievous effects; as, 1. The almost entire disuse and contempt of the court-leet, and sheriff's tourn, the king's antient courts of common law, formerly much rever

• See Vol. I. pag. 318, Sr.

Lambard and Burn.

ed

ed and respected. 2. The burthenfome increase of the bufinefs of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commiffion; from an apprehenfion that the duty of their office would take up too much of that time, which they are unwilling to spare from the necessary concerns of their families, the improvement of their understandings, and their engagements in other fervices of the public. Though if all gentlemen of fortune had it both in their power, and inclinations, to act in this capacity, the business of a juftice of the peace would be more divided, and fall the lefs heavy upon individuals: which would remove what in the present scarcity of magistrates is really an objection fo formidable, that the country is greatly obliged to any gentleman of figure, who will undertake to perform that duty, which in confequence of his rank in life he owes more peculiarly to his country. However, this backwardness to act as magiftrates, arifing greatly from this increase of summary jurifdiction, is productive of, 3. A third mifchief: which is, that this truft, when flighted by gentlemen, falls of courfe into the hands of those who are not fo; but the mere tools of office. And then the extensive power of a juftice of the peace, which even in the hands of men of honour is highly formidable, will be prostituted to mean and fcandalous purposes, to the low ends of selfish ambition, avarice, or perfonal refentment. And from thefe ill confequences we may collect the prudent forefight of our antient lawgivers, who fuffered neither the property nor the punishment of the fubject to be determined by the opinion of any one or two men ; and we may also observe the neceffity of not deviating any farther from our antient conftitution, by ordaining new penalties to be inflicted upon fummary convictions.

THE process of these fummary convictions, it must be owned, is extremely speedy. Though the courts of common law have thrown in one check upon them, by making it neceffary to fummon the party accused before he is condemned. This is now

held to be an indifpenfable requifite: though the justices long struggled the point; forgetting that rule of natural reason expreffed by Seneca,

66

Qui ftatuit aliquid, parte inaudita altera,

Aequom licet ftatuerit, haud aequus fuit."

A rule, to which all municipal laws, that are founded on the principles of justice, have strictly conformed: the Roman law requiring a citation at the least; and our own common law never fuffering any fact (either civil or criminal) to be tried, till it has previously compelled an appearance by the party concerned. After this fummons, the magiftrate, in fummary proceedings, may go on to examine one or more witnesses, as the statute may require, upon oath; and then make his conviction of the offender, in writing: upon which he usually iffues his warrant, either to apprehend the offender, in cafe corporal punishment is to be inflicted on him; or else to levy the penalty incurred, by distress and fale of his goods. This is, in general, the method of fummary proceedings before a justice or justices of the peace: but for particulars we must have recourfe to the several statutes, which create the offence, or inflict the punishment; and which usually chalk out the method by which offenders are to be convicted. Otherwise they fall of course under the general rule, and can only be convicted by indictment or information at the common law.

III. To this head, of fummary proceedings, may also be properly referred the method, immemorially used by the fuperior courts of justice, of punishing contempts by attachment, and the fnbfequent proceedings thereon.

THE Contempts, that are thus punished, are either direct, which openly infult or refift the powers of the courts, or the perfons of the judges who prefide there; or else are confequential,

• Salk. 181. 2 Lord Raym. 1405.