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 [*278] elsewhere, against any scholar of the university, or other privileged 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 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 [*279] more 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 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.

CHAPTER XX.

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 briefly speak, before we enter upon the latter, which will 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 harrassing the freeholders with frequent and troublesome attendances to try every minute *offence. But it has of [*281] 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,

1. 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 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, (b) and

(1) There were two reasons for holding inferior courts to great strictness in exercising authority to convict of petty offenses in a summary way: 1. That jury trial, which is sup posed to be favorable to accused parties was not allowed, and 2. No appeal was given, and therefore the conviction was final. It was perfectly reasonable, therefore, as Pratt, J., says in R. v. Marriott, Stra., 67, to keep the magistrate up strictly to the law. "No comparison," says Lord Kenyon, "can be made between summary proceedings on a conviction before magistrates, and actions in the courts of common law. * It is necessary for courts of justice to hold a strict hand over summary proceedings before magistrates, and I never will agree to relax any of the rules by which they have been bound. Their jurisdiction is of a limited nature, and they must show that the party was brought within it." Rex v. Stone, 1 East, 639, 649, 650. See also Rex v. Corden, Burr., 2279. In People v. Phillips, 1 Park. Cr. R., 95, it is said that a record must be made up in every case as a prerequisite to the execution of the conviction; the reasons of which are: 1. For protection of the accused, that he may not again be convicted of the same offense; 2. for protection of the magistrate: a proper record being conclusive evidence in his favor in cases within his jurisdiction; 3. in the absence of appeal the only mode by which the accused can obtain a review of the sentence is by habeas corpus or certiorari, founded on the record. To the same purport is Bennac v. People, 4 Barb., 164. And the record must recite the facts; not legal conclusions merely, or it will be void. Therefore, a complaint and conviction of defendant for that, on the Lord's day, commonly called Sunday, "he performed certain worldly employment or business, the same not being a work of necessity or charity, by driving certain horses to which was attached a carriage in which certain persons, not trav elers, but residents of the aforesaid county, were carried over the streets of the city of Pittsburgh," were held bad, because they did not show the purpose for which the carriage was driven. "No citizen," says Lowrie, Ch. J., "could have any sort of protection against the ignorance or wickedness of inferior magistrates, if these were authorized to convict citizens of offenses, and yet allowed so to record their proceedings that the very act done cannot be ascertained, and thus their judgment cannot be tested by their judicial superiors." Com.

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 courtleet, 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 gentle[*282] men 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 s0 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 deviat ing any farther from our ancient constitution, by ordaining new penalties to be inflicted upon summary convictions. (2)

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. 181. 2 Lord Raym. 14

[*283]

monwealth v. Nesbit, 34 Penn. St., 398, 403. See Commonwealth v. Burkhart, 23 Penn. St., 521.

It is probable that in cases in which jury trial is allowed, and especially if an appeal is given, a less strict rule will be applied. See 1 Bish. Cr. Pro., §§ 722-725. Even in those cases, however, it is necessary that it appear on the face of the proceedings that the magistrate had jurisdiction of the case under the statute; this being a general rule, applicable to all inferior tribunals. See People v. Koeber, 7 Hill, 39; State v. LaBore, 26 Vt., 765; Clark v. Holmes, 1 Doug. (Mich.), 390; Cooper v. Sunderland, 3 Iowa, 114; Tift v. Griffin, 5 Ga., 185; Jennings v. Stafford, 1 Ired.. 404; State v. Metzger, 26 Mo., 65; Perrine v. Farr, 22 N. J., 356; Sullivan v. Blackwell, 28 Miss., 737. And even if the record apparently show jurisdiction, it is competent to disprove it by other evidence. Fawcett v. Foulis, i Man. & Ry., 102; Sheldon v. Wright, 5 N. Y., 497; Sears v. Terry, 26 Conn., 273; Cooper v. Sunderland, 3 Iowa, 114; Brown v. Foster, 6 R. I., 564; Clark v. Holmes, 1 Doug. (Mich.), 390. Though if the jurisdiction depend upon matter of fact to be found by the magistrate, his finding is conclusive. Brittain v. Kinnaird, 1 B. & B., 432. See Mather v. Hodd, 8 Johns., 44; Mackaboy v. Commonwealth, 2 Virg. Cases, 270; Ex parte Kellogg, 6 Vt., 509; Facey v. Fuller, 13 Mich., 527; Ricketts v. Spraker, 77 Ind., 371; Freeman on Judgments, § 523, and cases cited.

(2) In Bennett v. Ward, 3 Caines, 259, where a statute was under consideration which seemed in one part to provide for a summary proceeding, and in another for a proceeding in the ordinary way, Chief Justice Kent remarked that, "where a statute admits of two constructions, it is advisable to give it that which is consonant to the ordinary mode of proceeding." This is a very proper and just rule.

"Qui statuit aliquid, parte inaudita altera,
Equum 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 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.

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. (3)

The contempts, that are thus punished, are either direct, which openly insult or resist the powers of the courts, or the person of the judges who preside there;

(3) The power to punish for contempt seems to have originated in the fact that the king, in contemplation of law, is supposed to be always present in his courts. Only courts of record, however, are, properly speaking, the king's courts, and therefore it has been said that they alone, at common law, have authority to fine and imprison for contempt. Queen v. Lefroy, L. R. 8 Q. B., 134; In re Kerrigan, 33 N. J., 344; Rhinehart v. Lance, 43 N. J., 311; S. C., 39 Am. Rep., 592; Noyes v. Byxbee, 45 Conn., 382. The power is therefore denied to justices of the peace. See above cases. Also, Albright v. Lapp, 26 Penn. St., 99. But in some states it is held that these magistrates have it. In re Cooper, 32 Vt., 253; and in some it is held that the power is a necessary incident in establishing a tribunal as a court. Brown v. People, 19 Ill., 613; Middlebrook v. State, 43 Conn., 257; U. S. v. New Bedford Bridge Co., Wood. & M., 401; Respublica v. Oswald, 1 Dall., 319; S. C., 1 Am. Dec., 246; State v. Morrill, 16 Ark., 384; Ex parte Adams, 25 Miss., 883; Ex parte Robinson, 19 Wall., 505; Hughes v. People, 5 Col., 436; see Robb v. McDonald, 29 Iowa, 330; S. C., 4 Am. Rep., 211; though perhaps the power of justices of the peace is to be restricted to contempts which are direct, as distinguished from those which are consequential or constructive. State v. Applegate, 3 McCord, 110; Lining v. Bentham, 2 Bay, 1; State v. Johnson, 2 Bay, 885; Queen v. Lefroy, L. R. 8 Q. B., 134. It has been held that the power of legislative bodies to punish for contempts of their authority is inherent. Anderson v. Dunn, 6 Wheat., 204; Burnham v. Morrissey, 14 Gray, 226; In re Falvey, 7 Wis., 630. For the limits to this authority, see Kilbourn v. Thompson, 103 U. S., 168.

At common law, adjudications of contempt by courts of competent jurisdiction are not subject to review by any higher tribunal. Yates v. Lansing, 9 Johns., 395; Williamson's Case, 26 Penn. St., 9; Watson v. Williams, 36 Miss., 331; Ex parte Smith, 53 Cal., 204; Tyler v. Hammersley, 44 Conn., 393; Hayes v. Fischer, 102 U. S., 121. But the question of jurisdiction is always open. Queen v. Lefroy, L. R. 8 Q. B., 134. And in some states power to review proceedings in contempt is given by statute. See Whitlaw v. State, 36 Ind., 196; Dunham v. State, 6 Iowa, 245; People v. Simonson, 9 Mich., 492. Whether a general power to pardon will embrace cases of convictions for contempt, see Re Muller, 7 Blatch., 23; 3 Op. Atty. Gen., 622; 4 Ibid., 317; State v. Sauvinet, 24 La. An., 119.

The most common classification of contempts is into direct and constructive. The contempt is direct when committed in the presence of, or so near to, the court as to interrupt its proceedings. Constructive contempts are not committed in the presence of the court, but tend, by their operation, to interrupt, obstruct, or prevent the due administration of Justice. Whittem v. The State, 36 Ind., 196; Stuart v. The People, 34 Ill., 395; State v. Orleans Civil Judges, 32 La. An., 1256. Direct contempts are usually punished upon the view and personal knowledge of the judge without taking evidence, or making a rule to show cause. If the offender leave the court-room before he can be punished, the judge may, without first issuing process for his arrest, sentence him. Middlebrook v. The State, 43 Conn., 257; State v. Örleans Civil Judges, 32 La. An., 1256.

In constructive contempts the court will, upon affidavit specifically making the charge, make a rule to show cause, or issue an attachment, and the party accused will have a right to be heard in his defense by himself or counsel. If he denies that he committed the acts

1

or else are consequential which (without such gross insolence or direct opposi tion) *plainly tend to create an universal disregard of their authority. The principal instances, of either sort, that have been usually (d) pun[*284] ishable 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 court 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 officers reflects some dishonour on their employers: and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen, in collateral matters

(d) 2 Hawk. P. C. 142, &c.

complained of, or insists that they do not constitute a contempt, the court will hear the evidence, and upon that determine. Whittem v. The State, 36 Ind., 196; Ex parte Ireland, 88 Tex., 344.

The following may be given as illustrations of direct contempts: Striking an attorney while he is addressing the court. Middlebrook v. State, 43 Conn., 257. Calling another a liar in the presence of the court. U. S. v. Emerson, 4 Cranch, C. C., 188. Addressing insulting language to the judge while he is proceeding to take his seat on the bench. Čommonwealth v. Dandridge, 2 Va. Cas., 408. Charging the judge with prejudice in a paper filed. Harrison v. State, 35 Ark., 458.

It is a constructive contempt of court to publish an article concerning pending proceedings calculated and intended to influence the result, or to bring the court in its dealings with it into public discredit or disgrace. Bronson's Case, 12 Johns., 460; Respublica v. Oswald, 1 Dall., 319; S. C., 1 Am. Dec., 246; State v. Matthews, 37 N. H., 450; In re Sturoc, 48 N. H., 428; People v. Wilson, 64 Ill., 195. Compare State v. Anderson, 40 Iowa, 207; Storey v. People, 79 Ill., 45.

It is a constructive contempt of court to serve with summons a witness who has come from another state to testify, but who has not since had time to return. Re Healey, 53 Vt., 694; 8. C., 38 Am. Rep., 713.

Where no private interests are involved, a party guilty of contempt will sometimes be discharged without punishment on his sworn disavowal that he intended to commit a contempt; but this is not of course. See People v. Freer, 1 Caines, 485; People v. Wilson, 64 Ill., 195; Watson v. Savings Bank, 5 S. C., 159; Hughes v. People, 5 Col., 436.

Attachments as for contempt may issue to compel the performance of duty by municipal bodies, but in such case the proceedings must be against the individual members. Bass v. Shakopee, 27 Minn., 250. They may also issue against inferior courts or judges for refusing, without cause, to sign a bill of exceptions. People v. Judges of Westchester, 2 Johns. Cas., 118; for refusing to obey a writ of mandamus: People v. Pearson, 4 Ill., 270; or any other lawful mandate of the superior court. Gorham v. Luckett, 6 B. Monr., 638.

Also against attorneys for refusing to pay over to clients moneys received in the professional character. Ex parte Staats, 4 Cow., 76; Ex parte Biggs, 64 N. C., 202; Smith v. McLendon, 59 Ga., 523; or for addressing insulting language to the judge, orally or in papers filed. Hill v. Crandall, 52 Ill., 70; In re Cooper, 32 Vt., 253; In re Woolley, 11 Bush, 95; Harrison v. State, 35 Ark., 458; for entering appearance in a case and confessing judgment without authority. Denton v. Noyes, 6 Johns., 296, and the like.

Also against sheriffs for neglecting to pay over moneys collected: Bagley v. Yeates, 3 McLean, 465; Matter of Stephens, 1 Ga., 584; for negligently suffering an escape, Craig v. Maltbie, 1 Ga., 544; for levying on property in the custody of the law: Matter of Hopper, 5 Paige, 489. See People v. Pierson, 4 Ill., 270.

Also against a clerk for refusing to comply with a mandamus: People v. Salomon, 54 Ill., 89; or to furnish copies of papers wanted for a trial. Delaney v. Regulators, 1 Yates, 403. Also against a witness for refusing to answer any proper question. U. S. v. Canton, 1 Cranch Č. C., 150; Burnham v. Morrissey, 14 Gray, 226; Hirsh v. State, 8 Bax.. 89; Hol