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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.
I speak not here of ecclesiastical courts; which punish spiritual sins, rather than temporal crimes, by penance, contrition and excommunication, pro salute anima; 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 commutation of penance. [*276] Of these we discoursed sufficiently in the preceding book.(4) I am now speaking of such courts as procced 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 a 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. (11)
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 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 still 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 utting 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 ÏÏen. 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 furnishes
[*277] the chopping-block, to the sergeant-farrier, who brings hot irons to sear
the stump. (12)
3. As in the preceeding 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.
(h) See book III, p. 61. (i) 4 Inst. 133. (k) 4 Inst. 133. 2. Hal. P. C. 7. (7) See book III, page 83.
(11) The statute 3 Hen. VII, c. 14, was repealed by the 6 Geo. IV, c. 31, and the jurisdiction of this court has accordingly become obsolete.]
(12) That part of statute 33 Hen. VIII, c. 12, relating to this subject, was repealed by 9 Geo. IV, c. 31, and this court is therefore become obsolete.
For by the charter of 7th June, 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 indictment is found at the assizes or elsewhere, against any scholar of the university, or other privileged person, the vice-chancellor may [*278] claim the cognizance of it; and (when claimed in due time 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 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 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 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 this. The high steward issues one precept to the sheriff of the county, who thereupon returns a panel of eighteen freeholders; and another precept to the bedels 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.
*I have been the more minute in describing these proceedings, as there has happily been no occasion to reduce them into practice for more [*279] than a century past; nor will it perhaps 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 vicechancellor at the assizes, 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.
OF SUMMARY CONVICTIONS.
We are next, according to the plan I have laid down, to take into considera. tion 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, 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 wili 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. 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, [*281] 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. (2) 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 depart-ments, 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 mulets, 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
(1) As to summary proceedings in general, and the dispositions 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. and S. 206; 1 Chitty on game laws, 189 to 223; Bracy's Case, 1 Salk. 348.]
(2) [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, 619; but that doctrine now seems to have been properly overruled: 1 East, 655; 1 M. and S. 206; for if the legislature has thought fit to intrust magistrates or other inferior jurisdictions with the deci sion in certain matters, their proceedings ought to be governed by the same rules of evidence as affect superior courts.]
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 respected. *2. The burthensome increase of the business of a justice of the peace, which discourages so many gentlemen of rank and [*282] 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.(3) 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 requisite; (c) though the justices long struggled the point; forgetting that rule of natural reason expressed by Seneca,
(c) Salk. 131. 2 Lord Raym. 1405.
(3) [Unless a power of appeal be expressly given by the legislature, there is no appeal: 6 East, 514; Wightw. 22; 4 M. and S. 421; 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. and S. 493. Upon an appeal, the magistrates are bound to receive any fresh evidence, although not tendered on the former hearing. 3 M. and 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 id. 590. If, therefore, the magistrate, in order to sustain his conviction, should misstate 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 show 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. and R. 352. If a magistrate wilfully misstate material evidence, he will be subject to a criminal formation or indictment. 1 East, 186.]
"Qui statuit aliquid, parte inaudita altera,
Aequum licet statuerit, haud acquus fuit:" (4)
A rule, to which all municipal laws, that are founded on the priciples of justice, have strictly conformed: the Roman law requiring a citation at the least; and our 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 ; (5) 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 pro
(4) ["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 Lord 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 r. Constable, 7 D. and R. 663; 3 M. C. 488. As this is a privilege of common right, which requires no special provision to enttitle the defendant to the advantage of it, so it cannot be taken away by any custom. Rex v. Cambridge (University), 8 Mod. 163. Upon a sufficient information 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 by mandamus. Rex r. Benn, 6 T. R. 193. Where a particular form of notice is prescribed by the act, that must be strictly pursued. Rex v. Croke, Cowp. 30. The intention of the summons being to afford the person accused the means of making his defence, it should contain the substance of the charge, and fix a day and place for his appearance; allowing a sufficient time for the attendance of himself and his witnesses. Rex . Johnson, 1 Stra. 260. A summous to appear immediately upon the receipt thereof, has been thought insufficient in one case. 2 Burr. 681. In another, an objection made to the summons that it was to appear on the same day, was only removed by the fact of the defendant having actually appeared, and so waived any irregularity in the notice. Rex v. Johnson, 1 Stra. 261. It is equally necessary that it should be to appear at a place certain: otherwise the party commits no default by not appearing; and the magistrate cannot proceed in the defendant's absence upon a summons defective in these particulars, without making himself liable to an information. Rex v. Simpson, 1 Stra. 46. The service of the summons must be personal, unless where personal service is expressly dispensed with by statute. Parker, C. J. 10 Mod. 345.]
(5) [The examination of witnesses must be upon oath, and no legal conviction can be founded upon any testimony not so taken. Dalt. c. 6, § 6; and see id. cc. 115, 164; Plowd. 12, a; Lamb. 517; Ex parte Aldri 4 D. and R. 83; 2 M. C. 120; Rex v. Glossopp, 4 B. and A. 616; Paley. 33, 34. Although no mode of examination be pointed out by the statutes giving jurisdiction over the offence; yet, as justice requires that the accused should be confronted with the witnesses against him, and have an opportunity of cross-examination, it is required by law, in the summary mode of trial now under consideration, that the evidence and depositions should be taken in the presence of the defendant, where he appears. For though the legislature, by a summary mode of inquiry, intended to substitute a more expeditious process for the common-law method of trial, it could not design to dispense with the rules of justice, as far as they are compatible with the method adopted. Indeed it may be useful upon this occasion to notice the general maxim which has been laid down as a guide to the conduct of magistrates in regulating all their summary proceedings, namely, that of parliament, in what they are silent, are best expounded according to the use and reason of the common law." Rex e. Simpson, 1 Stra. 45. Unless, therefore, the defendant forfeits this advantage by his wilful absence, he ought to be called upon to plead before any evidence is given. 1 T. R. 320. And the witnesses must be sworn and examined in his presence. Rex c. Vipont, 2 Burr. 1163. Or, if the evidence has been taken down in his absence, and, and is read over to him afterwards, the witness must at the same time, unless the defendant upon hearing the evidence should confess the fact, (Rex v. Hall, 1 T. R. 320), be resworn in his presence, and not merely called upon to assert the truth of his former testimony. Rex v. Crowther, 1 T. R. 125. For the intent of the rule is, that the witness should be subjected to the examination of the defendant upon his oath. 2 Burr. 1163; and see Rex v. Kiddy, 4 D. and R. 784; 2 M. C. 364.]