CHAPTER THE TWENTIETH.

OF SUMMARY CONVICTIONS.

E are next, according to the plan I have laid down, to take into confideration the proceedings in the courts of criminal jurifdiction, in order to the punishment of offences. These are plain, eafy, and regular; the law not admitting any fictions, as in civil caufes, to take place where the life, the liberty, and the fafety of the fubject are more immediately brought into jeopardy. And these proceedings are divifible into two kinds; fummary, and regular of the former of which I fhall briefly speak, before we enter upon the latter, which will require a more thorough and particular examination.

By a fummary proceeding I mean principally fuch as is directed by feveral acts of parliament (for the common law is a ftranger to it, unless in the cafe of contempts) for the conviction of offenders, and the inflicting of certain penalties created by thofe acts of parliament. In thefe there is no intervention of a jury, but the party accufed is acquitted or condemned by the fuffrage of such person only, as the statute has appointed for his judge. An institution defigned profeffedly for the greater ease of the subject, by doing him speedy justice, and by not haraffing the freeholders with frequent and troublefome attendances to try every minute offence.

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fence. But it has of late been fo far extended, as if a check be not timely given, to threaten the difufe of our admirable and truly English trial by jury, unless only in capital cafes. For,

I. Of this fummary nature are all trials of offences and frauds contrary to the laws of the excife, and other branches of the revenue: which are to be inquired into and determined by the commiffioners of the respective departments, or by juftices of the peace in the country; officers, who are all of them appointed and removable at the difcretion of the crown. And though fuch convictions are abfolutely neceffary for the. due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expenfe and delay of frequent prosecutions by action or indictment; and though such has usually been the conduct of the commiffioners, as feldom (if ever) to afford juft grounds to complain of oppreffion; yet when we again a confider the various and almoft 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 jurifdiction; we shall find that the power of thefe officers of the crown over the property of the people is increased to a very formidable height.

II. ANOTHER branch of fummary proceedings is that before juftices of the peace, in order to inflict divers petty pecuniary mulets, and corporal penalties, denounced by act of parliament for many disorderly offences; fuch as common fwearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justicebooks 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 juftice hath however had fome mifchievous effects; as, 1. The almost entire difufe and contempt of the court-leet, and fheriff's tourn, the king's antient courts of common law, formerly much revered and respected. a See Vol. I. pag. 319, &c.

b Lambard and Burn.

2. The burthenfome increase of the business of a justice of the peace, which difcourages fo many gentlemen of rank and character from acting in the commiffion; from an apprehenfion that the duty of their office would take up too much of that time, which they are unwilling to fpare from the neceffary 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 lefs heavy upon individuals: which would remove what in the present scarcity of magiftrates is really an objection fo formidable, that the country is greatly obliged to any gentleman of figure, who will undertake to perform that duty, which in confequence of his rank in life he owes more peculiarly to his country. However, this backwardnefs to act as magiftrates, arising greatly from this increase of fummary jurisdiction, is productive of, 3. A third mischief: which is, that this truft, when flighted by gentlemen, falls of courfe into the hands of those who are not fo; but the mere tools of office. And then the extensive power of a juftice of the peace, which even in the hands of men of honour is highly formidable, will be prostituted to mean and fcandalous purposes, to the low ends of felfifh ambition, avarice, or perfonal refentment. And from these ill confequences we may collect the prudent forefight of our antient lawgivers, who suffered neither the property nor the punishment of the fubject to be determined by the opinion of any one or two men; and we may also observe the neceffity of not deviating any farther from our antient conftitution, by ordaining new penalties to be inflicted upon fummary convictions.

THE process of these fummary convictions, it must be owned, is extremly fpeedy. Though the courts of common law have thrown in one check upon them, by making it neceffary to fummon the party accufed before he is con

demned.

demned. This is now held to be an indifpenfible requifite: though the justices long struggled the point; forgetting that rule of natural reafon expreffed by Seneca,

Qui ftatuit aliquid, parte inaudita altera,

Aequum licet ftatuerit, 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 fuffering any fact (either civil or criminal) to be tried, till it has previously compelled an appearance by the party concerned. After this fummons, the magistrate, in fummary proceedings, may go on to examine one or more witneffes, as the statute may require, upon oath; and then make his conviction of the offender, in writing: upon which he usually iffues his warrant, either to apprehend the offender, in cafe 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 fummary proceedings before a juftice or justices of the peace: but for particulars we must have recourfe to the feveral ftatutes, 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 courfe under the general rule, and can only be convicted by indictment or information at the common law.

III. To this head, of fummary proceedings,. may also be properly referred the method, immemorially used by the fuperior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon.

THE contempts, that are thus punished, are either direct, which openly infult or refift the powers of the courts, or the perfons of the judges who prefide there; or else are confequential, which (without fuch grofs infolence or direct oppofition)

VOL. IV.

© Salk. 181. 2 Lord Raym. 1405.

T

plainly

plainly tend to create an univerfal difregard of their authority. The principal instances, of either fort, that have been usually punishable by attachment, are chiefly of the following kinds. 1. Those committed by inferior judges and magiftrates by acting unjustly, oppreffively, or irregularly, in adminiftering thofe portions of juftice which are intrusted to their diftribution; 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 fuperfedeas, and the like. For, as the king's fuperior courts, (and especially the court of king's bench) have a general fuperintendance over all inferior jurisdictions, any corrupt or iniquitous practices of fubordinate judges are contempts of that fuperintending authority, whofe duty, it is to keep them within the bounds of justice. 2. Those committed by fheriffs, bailiffs, gaolers, and other officers of the court by abufing the process of the law, or deceiving the parties, by any acts of oppreffion, extortion, collufive behaviour, or culpable neglect of duty. 3. Those committed by attorneys and folicitors, who are alfo officers of the refpective courts: by grofs inftances of fraud and corruption, injustice to their clients, or other dishonest practice. For the mal-practice of the officers reflects fome difhonour on their employers: and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Thofe committed by jurymen, in collateral matters relating to the difcharge of their office: fuch as making default, when fummoned; refufing to be fworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the coft of either party; and other misbehaviours or irregularities of a fimilar kind: but not in the mere exercife of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed by witneffes by making default when fummoned, refusing to be fworn or examined, or prevaricating in their evidence when fworn. 6. Those committed by parties to any fuit or proceeding before the court: as by difobedience to any

d

2

Hawk. P. C. 142, Sc.

rule