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the abuse of them more narrowly; and hence this officer, though now usually a layman, is called the clerk of the market (g). If they be not according to the standard, then, besides the punishment of the party by fine, the weights and measures themselves ought to be burnt. This is the most inferior court of criminal jurisdiction in the kingdom: though the objects of its coercion were esteemed among the Romans of such importance to the public, that they were committed to the care of some of their most dignified magistrates, the curule aediles.

II. There are a few other criminal courts of greater dignity than many of these, but of a more confined and partial jurisdiction; extending only to some particular places, which the royal favour, confirmed by act of parliament, has distinguished by the privilege of having peculiar courts of their own for the punishment of crimes and misdemeanors arising within the bounds of their cognizance. These, not being universally dispersed, or of general use, as the former, but confined to one spot, as well as to a determinate species of causes, may be denominated private or special courts of criminal jurisdiction.

speak not here of ecclesiastical courts; which punish spiritual sins, rather than temporal crimes, by penance, contrition, and excommunication, pro salute animae; or, which is looked upon as equivalent to all the rest, by a sum of money to the officers of the court by way of [*276] commutation of penance. Of these we discoursed sufficiently in the preceding book (h). I am now speaking of such courts as proceed according to the course of the common law; which is a stranger to such unaccountable barterings of public justice.

1. And, first, the court of the lord steward, treasurer, or comptroller of the king's household (i), was instituted by statute 3 Hen. VII. c. 14. to inquire of felony by any of the king's sworn servants, in the cheque roll of the household, under the degree of a lord, in confederating, compassing, conspiring, and imagining the death or destruction of the king, or any lord or other of his majesty's privy council, or the lord steward, treasurer, or comptroller of the king's house. The inquiry, and trial thereupon, must be by a jury according to the course of the common law, consisting of twelve sad men (that is, sober and discreet persons) of the king's household.

2. The court of the lord steward of the king's household, or (in his absence) of the treasurer, comptroller, and steward of the marshalsea (k), was erected by statute 33 Hen. VIII. c. 12. with a jurisdiction to inquire of, hear, and determine, all treasons, misprisions of treason, murders, manslaughters, bloodshed, and other malicious strikings; whereby blood shall be shed in, or within the limits (that is, within two hundred feet from the gate) of any of the palaces and houses of the king, or any other house where the royal person shall abide. The proceedings are also by jury, both a grand and a petit one, as at common law, taken out of the officers and sworn servants of the king's household. The form and solemnity of the process, particularly with regard to the execution of the sentence for cutting off the hand, which is part of the punishment for shedding blood in the king's court, are very minutely set forth in the said statute 33 Hen. VIII., and the several officers of the servants of the household in and about such execution are *described; from the sergeant of the wood-yard, who fur- [*277]

(g) Bacon of English Gov. b. x, c. 8.

(A) See book 111. p. 61.

(i) 4 Inst 133.

(k) 4 1nst. 133. 2 Hal. P. C. 7,

nishes the chopping-block, to the sergeant-farrier, who brings hot irons to sear the stump (22).

3. As in the preceding book (1) we mentioned the courts of the two universities, or their chancellors' courts, for the redress of civil injuries; it will not be improper now to add a short word concerning the jurisdiction of their criminal courts, which is equally large and extensive. The chancellor's court of Oxford (with which university the author hath been chiefly conversant, though probably that of Cambridge hath also a similar jurisdiction) hath authority to determine all causes of property, wherein a privileged person is one of the parties, except only causes of freehold; and also all criminal offences or misdemeanors under the degree of treason, felony, or mayhem. The prohibition of meddling with freehold still continues but the trial of treason, felony, and mayhem, by a particular charter, is committed to the university-jurisdiction in another court, namely, the court of the lord high steward of the university.

For by the charter of 7 Jun. 2. Hen. IV. (confirmed, among the rest, by the statute 13 Eliz. c. 29.) cognizance is granted to the university of Oxford of all indictments of treasons, insurrections, felony, and mayhem, which shall be found in any of the king's courts against a scholar or privileged person; and they are to be tried before the high steward of the university, or his deputy, who is to be nominated by the chancellor of the university for the time being. But when his office is called forth into action, such high steward must be approved by the lord high chancellor of England; and a special commission under the great seal is given to him, and others, to try the indictment then depending, according to the law of the land and

the privileges of the said university. When therefore an indict[*278] ment is found at the assises, or elsewhere, against any scholar of

the university, or other privileged person, the vice-chancellor may claim the cognizance of it; and (when claimed in due time and manner) it ought to be allowed him by the judges of assise: and then it comes to be tried in the high steward's court. But the indictment must first be found by a grand jury, and then the cognizance claimed: for I take it that the high steward cannot proceed originally ad inquirendum; but only, after inquest in the common law courts ad audiendum et determinandum. Much in the same manner, as when a peer is to be tried in the court of the lord high steward of Great Britain, the indictment must first be found at the assises, or in the court of king's bench, and then (in consequence of a writ of certiorari) transmitted to be finally heard and determined before his grace the lord high steward and the peers.

When the cognizance is so allowed, if the offence be inter minora crimina, or a misdemeanor only, it is tried in the chancellor's court by the ordinary judge. But if it be for treason, felony, or mayhem, it is then, and then only, to be determined before the high steward, under the king's special commission to try the same. The process of the trial is thi The high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept the bedels of the university, who thereupon return a panel of eighteen matriculated lay

(1) See Book III. page 83.

(22) The 3 H. VII. c. 14, is wholly repeal ed by the 9 G. IV. c. 31, as is also the 33 H. VIII. c. 12. part of s. 6 to s. 18, relating to this subject. The two courts mentioned in

the text may now, therefore, be considered as no longer existing. They had for many years been utterly disused.

men, "laicos privilegio universitatis gaudentes:" and by a jury formed de medietate, half of freeholders and half of matriculated persons, is the indictment to be tried; and that in the guildhall of the city of Oxford. And if execution be necessary to be awarded, in consequence of finding the party guilty, the sheriff of the county must execute the university-process; to which he is annually bound by an oath.

*I have been the more minute in describing these proceedings, [*279] as there has happily been no occasion to reduce them into practice for more than a century past; nor will it perhaps ever be thought advisable to revive them: though it is not a right that merely rests in scriptis 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 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 bedel's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that university.



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 examination.

By a summary proceeding (1) 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 (2). 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 freeholders with frequent and troublesome attendances to try every minute *offence. But it has of late been so far extended, as, if a check be [*281]

(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 VOL. II.



(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.

not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases (3). 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 country; officers, who are all of them appointed and removable at the discretion of the crown. And 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 action 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 [*282] courts of common law, formerly much revered and 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 exten(a) See Book I. page 319, &c.

(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 pro

(b) Lambard and Burn.

perly 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.

sive 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 of 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 (4).

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 in- [*283]
dispensable requisite (c); 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 acquus fuit :" (5)

(c) Salk. 131. 2 Lord Raym. 1405.

(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. 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 subject, 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 rehearing 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 mistate 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 mistate material evidence, he will be subject to a criminal information or indictment. 1 East, 186.

(5) "He who decides a case without hearing both parties, though his decision may be just, is himself unjust;" which is adopted as a principle of law by Lord Coke, in 11 Co. Rep. 99. A summons is indispensably required in all penal proceedings of a summary nature by justices of peace. Rex v. Dyer, 1 Salk. 181; 6 Mod. 41; and see the cases collected in 8 Mod. 154. note (a). It is declared by Lord Kenyon to be an invariable rule of law, Rex v. Benn, 6 T. R. 198; and it is stated by Mr. Serj. Hawkins to be implied in the construction of all penal statutes. 1 Hal. P. C. 420. So jealous is the law to enforce this equitable rule, that the neglect of it by a justice in proceeding summarily without a previous summons to the party, has been treated as a misdemeanor, proper for the interference of the court of King's Bench by information : Rex v. Venables, 2 Ld. Ray. 1407; Rex v. Simpson, 1 Stra. 46; Rex v. Allington, id. 678; which has been granted upon affidavits of the fact. Rex v. Harwood, 2 Stra. 1088; 3 Burr, 1716, 1768; Rex v. Constable, 7 D. and R. 663, 3 M. C. 488. As this is a privilege of common right, which requires no special provision to entitle the defendant to the advantage of it, so it cannot be taken away by any custom. Rex v. Cambridge (Univer sity), 8 Mod. 163. Upon a sufficient informa tion properly laid, the magistrates are bound to issue a summons, and proceed to a hearing; and if they refuse to do so, will be compelled

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