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stances, one in the reign of queen Elizabeth, two in that of James the First, and two in that of Charles the First, where indictments for murder have been challenged by the vice-chancellor at the assises, and afterwards tried before the high steward by jury. The commissions under the great seal, the sheriff's and bedell's panels, and allt he other proceedings on the trial of the several indictments, are still extant in the archives of that university.

CHAP. XX.

OF SUMMARY CONVICTIONS.

We are next, according to the plan I have laid down, to take into consideration the proceedings in the courts of criminal jurisdiction, 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 divisible into two kinds; summary and regular of the former of which I shall briefly speak, before we enter upon the latter, which will require a more thorough and particular ex

amination.

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By a summary proceeding I mean principally such as is directed by several acts of parliament (for the common law is a stranger 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 is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the

subject, by doing him speedy justice, and by not harassing the free[281] holders with frequent and troublesome attendances to try every minute offence. But it has of late been so 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 cases. For,

I. Of this summary nature are all trials of offences and frauds contrary to the laws of the excise, and other branches of the revenue: which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the county; officers, who are all of them appointed and removeable at the discretion of the crown.

And

(1) As to summary proceedings in general, and the disposition of the courts, especially where no appeal is given, to require a stricter accuracy than is essential in other cases where there is a trial by jury, see 1 Stra. 67.; Burn J. tit. Convictions; 1 East, 649. 655.; 5 M. & S. 206.; 1° Chitty on Game Laws, 189 to 223.

(2) As to convictions in general, and the forms, see Paley on Convictions; Boscawen on Convictions; Burn J. tit. Convictions; Chitty's Game Law, 1 vol. 189 to 223. and 3 vol. 37 to 132. (3) See observations, Burn J. tit. Convictions; 1 East, 649. Hence it has been a doctrine, that a different rule of evidence, as to the strictness of proof, should be required in the case of proceedings on a summary information, than in an action, see 1 East, 649.; but that doctrine now seems to have been properly overruled, 1 East, 655. 1 M. & S. 206., for if the legislature has thought fit to intrust magistrates or other inferior jurisdictions, with the decision in certain matters, their proceedings ought to be governed by the same rules of evidence as affect superior

courts.

Chitty.

though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expense and delay of frequent prosecutions by ac tion or indictment; and though such has usually been the conduct of the commissioners, as seldom (if ever) to afford just grounds to complain of oppression; yet when we again (a) consider the various and almost 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 summary and arbitrary jurisdiction; we shall find that the power of these 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 justices of the peace, in order to inflict divers petty pecuniary mulcts, and corporal penalties denounced by act of parliament for many disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited, (b) and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the administration of justice hath however had some mischievous effects; as, 1. The almost entire disuse and contempt of the court-leet, and sheriff's tourn, the king's ancient courts of common law, formerly much revered and [282] respected. 2. The burthensome increase of the business of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commission; from an apprehension 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 services 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 justice of the peace would be more divided, and fall the less heavy upon individuals; which would remove what in the present scarcity of magistrates is really an objection so formidable, that the country is greatly obliged to any gentleman of figure, who will undertake to perform that duty, which in consequence of his rank in life he owes more peculiarly to his country. However, this backwardness to act as magistrates, arising greatly from this increase of summary jurisdiction, is productive of, 3. A third mischief which is, that this trust, when slighted by gentlemen, falls of course into the hands of those who are not so; but the mere tools of office. And then the extensive power of a justice of the peace, which even in the hands of men of honour is highly formidable, will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment. And from these ill consequences we may collect the prudent foresight of our ancient lawgivers, who suffered neither the property nor the punishment of the subject to be determined by the opinion of any one or two men; and we may also observe the necessity of not deviating any farther from our ancient constitution, by ordaining new penalties to be inflicted upon summary convictions.1

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a See Book I. page 319, &c.

b Lambard and Burr.

(4) Unless a power of appeal be expressly given by the legislature, there is no appeal, 6 East. 514. Wightw. 22. 4 M. & S. 421., as in proceedings against unqualified persons in the game laws, 8 T. R. 218. note 6.; but the party has in general a right to a certiorari, to remove the conviction into the court of king's bench, unless that right be expressly taken away. 8 Term. Rep.

The process of these summary convictions, it must be owned, is extremely speedy. Though the courts of common law have thrown in one check upon them, by making it necessary to summon the party accused

before he is condemned. This is now held to be an indispensable [283] requisite: (c) 5 though the justices long struggled the point; forgetting that rule of natural reason expressed by Seneca,

"Qui statuit aliquid, parte inaudita altera,

"Aequum licet statuerit, 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 suffering any fact (either civil or criminal) to be tried, till it has previously compelled an appearance by the party concerned. After this summons, the magistrate, in summary 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 issues his warrant, either to apprehend the offender, in case corporal punishment is to be inflicted on him; or else to levy the penalty incurred, by distress and sale of his goods. This is, in general, the method of summary proceedings before a justice or justices of the peace; but for particulars we must have recourse to the several sta

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c Salk. 181. 2 Lord Raym. 1405.

542. But though it seems to be a principle, that an appeal ought to be preserved in cases where the certiorari is taken away, yet in many cases, although there be no appeal, yet the certiorari is expressly taken away. Per Lord Mansfield, Dougl. 552. If a statute, authorizing a summary conviction before a magistrate, give an appeal to the sessions, who are directed to hear and finally determine the matter, this does not take away the certiorari, even after such an appeal made and determined; and lord Kenyon said, "The certiorari being a beneficial writ for the subjeet, could not be taken away without express words, and he thought it was much to be lamented in a variety of cases, that it was taken away at all." 8 T. R. 542. Where an appeal is given, the magistrates should make known to the convicted party his right to appeal, but if he decline appealing they need not go on to inform him of the necessary steps to be taken in order to appeal. 3 M. & S. 493. Upon an appeal the magistrates are bound to receive any fresh evidence although not tendered on the former hearing. 3 M. & S. 133.

Upon a certiorari the conviction of the magistrate is removed into the superior court, but there is not (as upon an appeal) any re-hearing of the evidence or merits; and the court can only look to the form of the conviction, and see from that whether or not the party has been legally convicted, and the certiorari therefore operates in the nature of a writ of error, and no extrinsic objection to the proceedings can be taken. 6 T. R. 376. 8 T. R. 590. If therefore the magistrate, in order to sustain his conviction, should mistake the evidence or other proceeding before him, the remedy is by motion founded on affidavits to the court of K. B. for a rule to shew cause why a mandamus should not issue, requiring the magistrate to state the whole of the evidence adduced before him correctly in his conviction, pursuant to 3 Geo. IV. c. 23. 4 Dowl. & R. 352. If a magistrate wilfully mistake material evidence, he will be subject to a criminal information or indictment. 1 East, 186. Chitty.

(5) 6 T. R. 198. 7 T. R. 275. 2 Barnard. 34. 77. 101. 1 Chitty G. L. 196.

(6) This doctrine, in its application to civil proceedings, has been lately established, it having been held that a custom to sign judgment against a defendant, who has not been served with process or appeared, is bad. 3 B. & C. 772. 785.

(7) As to the form of convictions in general, see Paley on Convictions; Burn J. Convictions; and Chitty's Game L. The difficulty of drawing up convictions, in cases where the particular statute does not give a prescribed forin, is in some respect remedied by the 3 Geo. IV. c. 23. s. 1., which gives a general form of conviction, but requires the magistrate "to state the evidence, and as nearly as possible in the words used by the witness;" which direction must be observed. See in matter of Kix. & anr., 4 Dowl. & R. 352. ante, 282. n. (4).

(8) By the 18 Geo. III. c. 19. justices of peace out of sessions are empowered to award costs against either the person complaining, or the person against whom the complaint is made; which if not paid may be levied by distress. And if no goods of such person can be found, he may be committed to hard labour for any time not less than ten days, or more than a month, or until such costs be paid. But where the penalty is 51. or more, the costs may, at the discretion of the justice, be deducted from the penalty, provided the deduction shall not exceed one-fifth of the penalty. The justices at the sessions may lay down rules for such costs, which rules, if they receive the approbation in writing of a judge of assize, shall be binding on all persons whatever.

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tutes, which create the offence, or inflict the punishment and which usu ally chalk out the method by which offenders are to be convicted. Other. wise 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 summary proceedings, may also be properly referred the method, immemorially used by the superior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon."

The contempts, that are thus punished, are either direct, which openly insult or resist the powers of the courts, or the persons of the judges who preside there; or else are consequential, which (without such gross insolence or direct opposition) plainly tend to create an universal [284} disregard of their authority. The principal instances, of either sort, that have been usually (d) punishable by attachment, are chiefly of the following kinds. 1. Those committed by inferior judges and magistrates; by acting unjustly, oppressively, or irregularly, in administering those portions of justice which are intrusted to their distribution: or by disobeying the king's writs issuing out of the superior courts, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas, and the like. For, as the king's superior courts (and especially the court of king's bench) have a general superintendance over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court: by abusing the process of the law, or deceiving the parties, by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty.10 V 3. Those committed by attorneys and solicitors, who are also officers of the respective courts: by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice." For the mal-practice of the officers reflects some dishonour on their employers: and, if frequent or unpunished, creates among the people a disgust against the courts them. selves. 4. Those committed by jurymen, in collateral matters relating to the discharge of their office: such as making default, when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviour or irregularities of a similar kind: but not in the mere exercise of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed by witnesses: by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn. 6. Those committed by parties to any suit, or proceeding be

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d 2 Hawk. P. C. 142, &c.

(9) As to contempts of magistrates, or during a trial, see 1 Chit. Cr. L. 71. 91. 515. Bac. Ab Courts, E.

(10) See Tidd, 8 edit. 308, 9. 312, 3.231.

(11) It is not, however, usual for the court to interfere in a summary way against an attorney for a mere breach of promise, where there is nothing criminal, 2 Wils. 371. and see 2 Moore, 665. 1 Bing. 102, 5.; or on account of negligence or unskilfulness, & Burr. 2060. 2 Bla. Rep. 780. 1 Chit. Rep. 651. except it be very gross, Say. 50. 169.; nor for the misconduct of an attorney independently of his profession. But see 4 B. & A. 47. 5 B. & A. 898. 2 Chit. Rep. 68. 1 Bingh. 91. 7 Moore, 424. 437. Tidd, 8 ed. 81.

(12) But in the C. P. such attachment will not be granted unless a clear case of contempt be made out, the party aggrieved being left to his remedy by action. Barnes, 33. 35. 497. 1 H Bla. 45. 5 Taunt. 260. 6 Taunt. 9. 1 Marsh. 410. S. C.

VOL. II.

78

fore the court: as by disobedience to any rule or order, made in [285] the progress of a cause; by non-payment of costs awarded by the court upon a motion; or by non-observance of awards duly made by arbitrators or umpires, after having entered into a rule for submitting to such determination. (e) " 13 Indeed the attachment for most of this species of contempts, and especially for non-payment of costs and non performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court.14 And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by a general act of pardon. And upon a similar principle, obedience to any rule of court may also by statute 10 Geo. III. c. 50. be enforced against any person having privilege of parliament by the process of distress infinite. 7. Those committed by any other persons under the degree of a peer and even by peers themselves, when enormous and accompanied with violence, such as forcible rescous and the like; (f) or when they import a disobedience to the king's great prerogative writs of prohibition, habeas corpus, (g) and the rest. Some of these contempts may arise in the face of the court; as by rude and contumelious behaviour; by obstinacy, perverseness, or prevarication : 16 by breach of the peace, or any wilful disturbance whatever: others in the absence of the party; as by disobeying or treating with disrespect the king's writ, or the rules or process of the court; " by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court or judges, acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) 15 of causes then depending in judgment; and by any thing, in short, that demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people."

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The process of attachment, for these and the like contempts, must necessarily be as ancient as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every supee See Book III. page 17. f Styl. 227. 2 Hawk. P. C. 152. Cro. Jac. 419. Salk. 536. g4 Burr. 632. Lords' Journ. 7 Feb. 8 June, 1757.

(13) In all cases it should seem that personal service and demand of performance of an order of court, &c. should be made to ground an attachment. 1 Bingh. 410.

(14) By the insolvent acts persons committed to prison upon an attachment for non-payment of money, awarded to be paid upon a submission to an arbitration, which has been made a rule of court, or upon an attachment for not paying costs, may have the benefit of that statute as insolv ent debtors.

(15) But a peer cannot be attached for non-payment of money, pursuant to an order of nisi prius, which has been made a rule of court. 7 T. R. 171 448.

(16) As to a party's liability to this process for prevarication in endeavouring to justify as bail,

see ante.

(17) An attachment will not be granted for violent or contemptuous behaviour after the service of the process. 1B. & B. 24. 4 Moore, 147. See Tidd, 8 ed. 169.

(18) We have already seen that the defendant may be punished for disobedience of an order by a court of general gaol delivery, prohibiting the publication of proceedings pending a trial there. 4 B. & A. 218. 1 B. & A. 379.

19) An attachment lies for attempting to influence a jury. 3 Burr. 1564.

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