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 jus[ *282 ] tice 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 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) [283] though the justices long struggled the point; forgetting that rule of [*283] 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 information or indictment. 1 East, 186.] 66 Qui statuit aliquid, parte inaudita altera, 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 berch by infor mation (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 v. 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 v. Benn, 6 T. R. 198. 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 v. 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 “acts of parliament, in what they are silent, are best expounded according to the use and reason of the common law." Rex v. 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 . 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. 1:25. 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.] ceedings before a justice or justices of the peace; but for particulars we mus: 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. (6) 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 indolence or direct opposition) *plainly tend to create an universal disregard of their authority. The principal instances, of either sort that have been usually, (d) puň- [*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, baliffs, 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. (7) For the malpractice of the officers reflects some dishonor 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 relating to the discharge of their office; such as making default, when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviours or irregularities of a similar kind: but not in mere exercise of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed by witnesses: by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn. 6. Those committed by parties to any suit, or proceeding before the court: as by disobe (d) 2 Hawk. P. C. 142, &c. (6) [These acts have been consolidated, and the duties of justices clearly defined by the statute 11 and 12 Vic. c. 43, which provides a procedure applicable to the great majority of cases in which in a summary conviction or order may be made by justices of the peace out of sessions.] And in the United States, where statutes authorize summary convictions, they point out specifically the course of proceeding, and it is a rule of universal application that the magistrate must follow this course strictly, and the conviction must show upon its face a case coming within the statute, and of which the justice had jurisdiction. No intendments will be made in favor of these summary proceedings. See the general rule in Britain v. Kinnard, 1 Brod. and Bing. 432; Piper v. Pierson, 2 Gray 120, and notes thereto, in Leading Criminal Cases, by Bennett and Heard. (7) [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 Bing. 102, 105; or on account of negligence or unskilfulness: 4 Burr. 2060; 2 Bla. Rep. 780; 1 Chit. Rep. 651; except it be very gross; Say, 50, 169; nor for the misconduct of an attorney independently of his profession. But see 4 B. and A. 47; 5 id. 898; 8 Chit. Rep. 58: 1 Bingh. 91; 7 Moore, 424, 437; Tidd. 5th ed. 81.] The power of courts to commit for contempt, and the limitations upon that power were very fully considered in the case of Yates, 4 Johns. 317; 6 id. 337, and 9 id. 395. And as to justices' courts, see Onderdonk v. Ranlett, 3 Hill, 323. VOL. II.-60 473 dience to any rule or order, made in the progress of a cause; by non[ *285] payment of costs awarded by the court upon a motion; or, by nonobservance of awards duly made by arbitrators or umpires, after having entered into a rule for submitting to such determination. (e) Indeed the attachment for most of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. And, therefore, it hath been held that such contempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by the general act of pardon. And upon a similar principle, obedience to any rule. of court may also, by statute 10 Geo. III, c. 50, be enforced against any person having privilege of parliament by the process of distress infinite. 7. Those committed by any other persons under the degree of a peer: and even by peers themselves, when enormous and accompanied with violence, such as forcible rescous and the like; (f) or when they import a disobedience to the king's great prerogative writs of prohibition, habeas corpus, (g) and the rest. Some of these contempts may arise in the face of the court; as by rude and contumelious behaviour; by obstinacy, perverseness, or prevarication: by breach of the peace, or any wilful disturbance whatever: others in the absence of the party; as by disobeying or treating with disrepect the king's writ, or the rules of process of the court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court or judges, acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment; and by any thing, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people. *The process of attachment, for these and the like contempts, must [ *286 ] necessarily be as ancient as the laws themselves. For laws without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseperable attendant upon every superior tribunal. Accordingly, we find it actually exercised as early as the annals of our law extend. And though a very learned author (7) seems inclinable to derive the process from the statute of Westm. 2, 13 Edw. I, c. 39 (which ordains, that in case the process of the king's court be resisted by the power of any great man, the sheriff shall chastise the resisters by imprisonment, "a qua non deliberenter sine speciali præcepto domini regis" and if the sheriff himself be resisted, he shall certify to the courts the names of the principal offenders, their aiders, consenters, commanders, and favourers, and by a special writ judicial they shall be attached by their bodies to appear before the court, and if they be convicted there of they shall be punished at the king's pleasure, without any interfering by any other person whatsoever), yet he afterwards more justly concludes, that it is part of the law of the land, and, as such, is confirmed by the statute of mangna carta. If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, (i) without any farther proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him; (j) or, in very flagrant instances of contempt, the attachment issues in the first instance; (k) as it also *does, if no sufficient cause be shown to discharge, and thereupon the court confirms, and ( Styl. 277. 2 Hawk. P. C. 152. Cro. Jac. 419. Salk. 586. [*287] (e) See book, III, page 17. (g) 4 Burr. 632. Lord's Journ. 7 Feb. 8 Jun. 1757. (Staund. P. C. 73, b. (3) Styl. 277. (h) Gilb. Hist. C. P. ch. 8. (2) Salk. 84. Stra. 183, 581. makes absolute, the original rule. This process of attachment is merely intended to bring the party into court: and, when there, he must either stand committed, or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him, for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days: (1) and, if any of the interrogatories is improper, the defendant may refuse to answer it, and move the court to have it struck out. (m) If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury. (n) If he confesses the contempt, the court will proceed to correct him by fine, or imprisonment, or both, and sometimes by a corporal or infamous punishment. (0) If the contempt be of such nature that, when the fact is once acknowledged, the court can receive no farther information by interrogatories than it is already possessed of (as in the case of a rescous), (p) the defendant may be admitted to make such simple acknowledgment, and receive his judgment without answering to any interrogatories: but if he wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court. It cannot have escaped the attention of the reader, that this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance; (7) and seems indeed to have been derived to the courts of king's bench and common pleas through the medium of the courts of equity. For the whole process of the courts of equity, in the several stages of.a cause, and finally to enforce their decrees, was, till the *introduction of sequestrations, in the nature of a process of contempt; [ *288] acting only in personam and not in rem. And there, after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party: whereas, in the courts of law, the admission of the party to purge himself by oath is more favourable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed. And, with regard to this singular mode of trial, thus admitted in this one particular instance, I shall only for the present observe, that as the process by attachment in general appears to be extremely ancient, (r) and has in more modern times been recognized, approved, and confirmed by several express acts of parliament, (s) so the method of examining the delinquent himself upon oath with regard to the contempt alleged, is at least of as high antiquity, (t) and by long and immemorial usage is now become the law of the land. CHAPTER XXI. OF ARRESTS. WE are now to consider the regular and ordinary method of proceeding in the courts of criminal jurisdiction; which may be distributed under twelve general heads, following each other in a progressive order, viz.: 1. Arrest: 2. Commitment, and bail; 3. Prosecution; 4. Process; 5. Arraignment, and its incidents; 6. Plea, and issues; 7. Trial, and conviction; 8. Clergy; 9. Judgment, and its consequences; 10. Reversal of judgment; 11. Reprieve, or pardon; (p) The King v. Elkins, M. 8 Geo. III, B. R. (r) Yearb, 20 Hen. VI. c. 37. 22 Edw. IV, c. 29. (0) Cro. Car. 146. (s) Stat. 43 Eliz. c. 6, § 3. 13 Car. II, st. 2. c. 2, § 4. 9 and 10 Wm. III, c. 15. 12 Ann. st. 2, c. 15, § 5. (t) M 5 Edw. IV, rot. 75, cited in Rast. Ent. 268, pl. 5. |