CHAPTER THE TWENTIETH.

OF SUMMARY CONVICTIONS.

WE

E 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 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, if a check [ 281 ] 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 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 expence 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. (1)

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, 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 antient courts of [282] common law, formerly much revered and respected. 2. The

(1) Formidable as the summary power is, which the legislature has entrusted to commissioners and justices of the peace, in respect of the excise and other revenue laws, this sentence overstates it considerably, being so expressed as to convey an idea that all offences against those laws are within this summary jurisdiction. The fact is, that a very large number of offences against them are triable only upon information and indictment before the constitutional tribunal of the jury; and I believe (though in such a number of statutes it is not safe to speak with too much confidence), that no offence is triable summarily, of which the direct punishment can be corporal, imprisonment, or transportation.

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 will 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 antient 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 antient constitution, by ordaining new penalties to be inflicted upon summary convictions.

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"; though [283] the justices long struggled the point; forgetting that rule of natural reason expressed by Seneca,

© Salk. 181. 2 Lord Raym. 1405.

"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 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. (2)

(2) In speaking of summary convictions by justices, it should not be lost sight of that in a great, perhaps the greater number of cases, an appeal lies from the justices to the quarter sessions or other courts, in which case the merits may be re-considered, and the same or fresh evidence be heard for and against the judgment; nor that in all cases a conviction may be removed into the court of king's bench by certiorari, unless the statute under which it is framed expressly provides to the contrary. When it is thus brought under review, as it proceeds from a jurisdiction at once extraordinary and circumscribed, the court will presume nothing in its favour, but every thing requisite to make it valid must appear upon its face. There is no doubt that this rule, which has been adhered to with laudable strictness from the proper jealousy entertained of these summary proceedings, has in many cases led to the quashing of convictions for defects of form, in which justice had been substantially done below. The legislature, therefore, has lately interfered, and by 3 G. 4. c. 23. given a form of conviction to be used in all cases in which previous statutes do not direct some other; and further enacted, that in all cases in which it shall appear by the conviction that the defendant has appeared and pleaded, and the merits have been tried, and in which the defendant has not appealed if he might, or the conviction been affirmed

on

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) [ 284 ] plainly tend to create an universal disregard of their authority. The principal instances, of either sort, that have been usually 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 entrusted 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. 3. Those committed by attornies and solicitors, who are also officers of the respective courts: by

d 2 Hawk. P. C. c. 22.

on appeal, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal one as will be agreeable to the justice of the case.

This statute seems to put the law as to convictions on a right footing; it is not proper that any thing, even if objectionable in principle, should in courts of justice be met by astute and cavilling constructions; on the other hand, no favour should be shewn to loose and incorrect proceedings; and the statute, by leaving it to the judges to distinguish between formal and substantial defects, and protecting the former only, has preserved untouched to them their constitutional power of watching over and restraining the proceedings of the inferior magistrates.