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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 of 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 [*278 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 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 misdemeanour 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 sheriff 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 [*279 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 instancesone 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 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 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 proceeding1 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 attend*281] ances to try every minute *offence. But it has of late 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,
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 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 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 common law, formerly much revered and respected. *2. The burthensome increase of the business of a justice of the peace, *282] 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
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 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 Law, vol. i. 189 to 223, and vol. iii. 37 to 132.-CHITTY.
See observations, Burn, J., tit. Convictions. 1 East, 649. Hence it has been a dec trine 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. & 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:➡CAITTY.
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 of two men; and we may also observe the necessity of not deviating any further 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 [*283 *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,
"Qui statuit aliquid, parte inaudita altera,
Aequum licet statuerit, haud acquus fuit:"5
(e) Salk. 131. 2 Lord Raym. 1405.
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 T. R. 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 magis trates 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 misstate the evidence or other proceeding before him, the remedy is by motion founded on affidavits to the court of King's Bench 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. & R. 352. If a magis trate wilfully misstate material evidence he will be subject to a criminal information o indictment. 1 East, 186.-CHITTY.
"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 vs. 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 vs. 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 misdemeanour, proper for the interference of the court of King's Bench by information, (Rex vs. Venables, 2 Lord Raym. 1407. Rex vs. Simpson, 1 Stra. 46. Rex vs. Allington, id. 678;) which has been granted
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 common law never suffering any fact (either civil or criminal) to be triedtill it has previously compelled an appearance by the party concerned. After this summons the magistrate, in summary proceedings, may go on to examine ene or more witnesses, as the statute may require, upon oath; and then make
upon affidavits of the fact. Rex vs. Harwood, 2 Stra. 1088. 3 Burr. 1716, 1768. Rex vs. Constable, 7 D. & 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 vs. 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 vs. Benn, 6 T. R. 195. The summons should be directed to the party against whom the charge is laid, and should in general be signed by the justice himself by whom it is issued. Rex vs. Steventon, 2 East, 365. Where a particular form of notice is prescribed by the act, that must be strictly pursued. Rex vs. 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 vs. Johnson, 1 Stra. 260. A summons 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 vs. 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 vs. Simpson, 1 Stra. 46. It has been made a question whether the service of the summons must be personal. It seems in general necessary that it should be so, unless where personal service is expressly dispensed with by statute. Parker, C. J., was of that opinion. 10 Mod. 345. And the provisions specially introduced into many acts of parliament to make a service at the dwellinghouse sufficient, seem to justify the inference that the law in other cases is understood to require a service upon the person. Where personal service is not necessary, leaving a copy at the house is sufficient, (Rex vs. Chandler, 14 East, 268;) and the delivery may be to a person on the premises apparently residing there as a servant. Id. ibid. These rules apply, however, only to those cases where the defendant does not in fact appear; for if he actually appears and pleads, there is no longer any question upon the sufficiency or regularity of the summons. 1 Stra. 261. Paley on Convictions, 2d ed. by Dowling, 21, 23. -CHITTY.
The magistrate has in general no authority to compel the attendance of witnesses for the purpose of a summary trial, unless where it is specially given by act of parliament. This in many cases has been done; and in sundry acts the provision is accompanied with a penalty on refusal to attend for the purpose of being examined. It seems agreed that the examination of witnesses must be upon oath, and that no legal conviction can be founded upon any testimony not so taken. There is a difference in the manner in which the acts are worded in regard to the mode of examination to be pursued; for while some acts expressly mention the testimony of witnesses on oath, others in general terms authorize the magistrate to hear and determine, or to convict or give judgment on the examination of witnesses without noticing the oath. But such general expressions seem in legal construction necessarily to refer to the only kind of testimony known to the law, namely, that upon oath. "For," says Dalton, "in all cases wheresoever any man is authorized to examine witnesses, such examination shall be taken and construed to be as the law will, i.e. upon oath." Dalt. c. 6, s. 6; and see id. c. 115, c. 164; Plowd. 12, a.; Lamb, 517; ex parte Aldridge, 4 D. & R. 83; 2 M. C. 120; Rex vs. Glossopp, 4 B. & A. 616; Paley, 33, 34. Although no mode of examination be pointed out by the statutes giving jurisdic tion 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 "acts of parliament, in what they are silent, are best expounded
his conviction of the offender in writing: upon which he usually issues his war rant 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.
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 [*284 opposition) *plainly tend to create a universal disregard of their authority. The principal instances of either sort that have been usually (d) 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 intrusted 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 courts of king's bench) have a general superintendence 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 attorneys and solicitors, who are also officers of the respective courts, by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice; for the malpractice of the
(4) 2 Hawk. P. C. 142, &c.
according to the use and reason of the common law." Rex vs. 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 vs. Vipont, 2 Burr. 1163. Or, if the evidence has been taken down in his absence 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 vs. Hall, 1 T. R. 320,) be resworn in his presence, and not merely called upon to assert the truth of his former testimony. Rex vs. 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 vs. Kiddy, 4 D. & R. 734; 2 M. C. 364. This rule is confirmed rather than contradicted by those cases wherein convictions have been sustained without expressly alleging the evidence to have been taken in the presence of the defendant. Rex vs. Baker, 2 Stra. 1240. Rex vs. Aiken, 3 Burr. 1786. Rex vs. Kempson, Cowp. 241. For it will be found that in all those cases the judg ment proceeded upon a presumption collected from the whole conviction that the defendant was in fact present and did hear the evidence given, which was always admitted to be necessary to the regularity of the magistrate's proceedings. Rex vs. Vipont, 2 Burr. 1163; and see Rex vs. Lovat, 7 T. R. 162; Rex vs. Thompson, 2 T. R. 18; Rex vs. Swallow, 3 T. R. 284; Paley, 39, 40.-CHITTY.
These acts have been consolidated, and the duties of justices clearly defined, by the statute 11 & 12 Vict. c. 43, which provides a procedure applicable to the great majority of cases in which a summary conviction or order may be made by justices of the peace out of sessions.-KERR.
It is not, however, usual for the court to interfere in a summary way against an attorney for a mere breach of promise where there is nothing criminal, (2 Wils. 371; and see 2 Moore, 665. 1 Bingh. 102; 105;) or on account of negligence or unskilfulness, (4 Burr. 2060. 2 Bla. Rep. 780. 1 Chitt. Rep. 661,) except it be very gross, (Say, 50, 169;) nor for the misconduct of an attorney independently of his profession But see 4 B. &