and manner) it ought to be allowed him by the judges of assize; 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 can not 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 assizes, 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 offense be inter minora crimina, or a misdemeanor only, it is tried in the chan. cellor'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 this. The high stew ard issues one precept to the sheriff of the county, who there upon returns a panel of eighteen freeholders, and another precept to the beadles of the University, who thereupon return a panel of eighteen matriculated laymen, "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. [279] I have been the more minute in describing these proceedings, Conclusion. 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 assizes, and afterward tried before the high steward by jury. The commissions under the great seal, the sheriff's and beadle's panels, and all the other proceedings on the trial of the several indictments, are still extant in the archives of that University. 320 CHAPTER XX. OF SUMMARY CONVICTIONS. We are next, according to the plan I have laid down, to take Summary proceedmto consideration the proceedings in the courts of criminal ju- ings. risdiction, in order to the punishment of offenses. These are plain, easy, and regular, the law not admitting any fictions, ast in civil causes, to take place where the life, and 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.' ing offend By a summary proceeding I mean, principally, such as is di- In convict rected by several acts of Parliament (for the common law is a ers. 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 freeholders with frequent and troublesome attendances to try every minute offense. But it has of late [281] 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, against revenue laws. I. Of this summary nature are all trials of offenses and frauds I. In frauds contrary to the laws of the excise, and other branches of the revenue; which are to be inquired into and determined by the (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. Conviction; 1 East, 649, 655; 5 M. & Selw., 206; 1 Chitty on Game Laws, 189 to 223. [CHITTY.] (2) As to convictions in general, and the forms, see Paley on Convictions; Boscawen on Convictions; Burn, J., tit. Convictions; Chitty's Game Laws, vol. i., 189 to 223, and vol. iii., 37 to 132. -[CHITTY.] VOL. IV.- X (3) 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. & Selw., 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.] 321 II Before justices for disorderly general. 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 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 offenses in mulets and corporeal penalties, denounced by act of Parliament for many disorderly offenses, 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, 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, for[282] merly much revered and respected. 2. The burdensome 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 a See vol. i., page 318, &c. Lambard and Burn. the peace, which, even in the hands of men of honor, 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 further from our ancient constitution, by ordaining new penalties to be inflicted upon summary convictions.* Of the ne The process of these summary convictions, it must be owned, is extremely speedy. Though the courts of common law have summons. thrown in one check upon them, by making it necessary to summon the party accused before he is condemned. This is now [283] held to be an indispensable requisite ; though the justices long struggled the point, forgetting that rule of natural reason expressed by Seneca, "Que statuit aliquid, parte inaudita altera, Salk., 181; 2 Lord Raym., 1405. though not tendered on the former hear- (4) Unless a power of appeal be expressly given by the legislature, there is no appeal, 6 East, 514; Wightw., 22; Upon a certiorari the conviction of 4. M. & Selw., 421; as in proceedings the magistrate is removed into the supeagainst unqualified persons on the game rior court, but there is not (as upon an laws, 8 T. R., 218, note 6; but the par- appeal) any rehearing of the evidence ty has, in general, a right to a certiorari, or merits; and the court can only look to remove the conviction into the Court to the form of the conviction, and see of King's Bench, unless that right be ex- from that whether or not the party has pressly taken away. 8 T. R., 542. But been legally convicted, and the certiorathough it seems to be a principle that ri, therefore, operates in the nature of a 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. & Selw., 493. Upon an appeal, the magistrates are bound to receive any fresh evidence, al writ of error, and no extrinsic objection (5) 6 T. R., 198; 7 T. R., 275; 2 Barnard, 34, 77, 101,-[CHITTY.] See 7 & 8 Geo. IV., c. 29, s. 65, and c. 30, s. 29, as to the mode of compelling the appearance, by summons, of persons punishable on summary conviction under those acts (larceny and malicious mischief). III. Proceedings by attachment for contempts of court. 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 corporeal 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 statutes which create the offense 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 summary proceedings may also be prop (6) This doctrine has been lately established in its application to civil proceedings, 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.-[CHITTY.]* (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 form 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 re Rix, 4 Dowl. & R., 352, and ante, 282, n. (4).-[CHITTY.] (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 labor for any time not less than ten days, or more than a month, or until such costs be paid. But where the penalty is £5 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.-[CHRISTIAN.] (9) See the stat. 2 & 3 Vict., c. 71, as to the power, by way of summary con viction and otherwise, of the magistrates sitting in the police courts of the metropolis; and the 5 & 6 Will. IV., c. 76, s. 101, 127, as to the jurisdiction of justices of the peace in boroughs. See, also, the 7 & 8 Geo. IV., c. 29, s. 64, et seqq., and c. 30, s. 29, et seqq., as to the proceedings for offenses punishable under those acts on summary conviction. Both of them contain provisions making the conviction a bar to any other proceedings for the same cause.t *See, also, to same point, 5 Wendell, 148, 161; 6 Id., 147; 13 Id., 407. In New York, summary convictions may be had of beggars and vagrants, 1 R. S., 632; disorderly persons, including keepers of bawdy-houses, prostitutes, and gamblers. Id., p. 638; persons chargeable with profane cursing and swearing, Id., p. 673; disturbers of religious meetings, Id., p. 674; and violators of the Sabbath, Id., p. 675, 676. |