CHAPTER THE TWENTIETH.
OF SUMMARY CONVICTIONS.

WE 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 punifhment of offences. Thefe 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 thefe proceedings are divifible into two kinds ; fummary, and regular : of the former of which I fhall briefly fpeak, 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, unlefs 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 there is no intervention of a jury, but the party accufed is acquitted or condemned by the fuffrage of fuch perfon only, as the ftatute has appointed for his judge. An inftitution defigned profeffedly for the greater eafe of the fubject, by doing him fpeedy juftice, and by not harraffing the freeholders with frequent and troublefome attendances to try every minute offence. But it
has
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has of late been fo far extended, as, if a check be not timely given, to threaten the difufe of our admirable and truly Englifh trial by jury, unlefs 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 enquired into and determined by the commiffioners of the refpective departments, or by juftices of the peace in the country ; officers, who are all of them appointed and removeable at the difcretion of the crown. And though fuch convictions are abfolutely neceffary for the due collection of the public money, and are a fpecies of mercy to the delinquents, who would be ruined by the expenfe and delay of frequent profecutions by indictment ; and though fuch has ufually 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 fubjects of fraud, or at leaft complaints of fraud, and of courfe the objects of this fummary and arbitrary jurifdiction ; we fhall find that the power of thefe officers of the crown over the property of the people is increafed 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 mulcts, and corporal penalties, denounced by act of parliament for many diforderly offences ; fuch as common fwearing, drunkennefs, vagrancy, idlenefs, and a vaft variety of others, for which I muft refer the ftudent to the juftice-books formerly cited ^b, and which ufed to be formerly punifhed by the verdict of a jury in the court-leet. This change in the adminiftration of juftice hath however had fome mifchievous effects ; as, 1. The almoft entire difufe and contempt of the court-leet, and fheriff's tourn, the king's antient courts of common law, formerly much rever-

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^a See Vol. I. pag. 318, & c.
^b Lambard and Burn.
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cd
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ed and refpected. 2. The burthenfome increafe of the bufinefs of a juftice 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 underftandings, and their engagements in other fervices of the public. Though if all gentlemnn of fortune had it both in their power, and inclinations, to act in this capacity, the bufinefs of a juftice of the peace would be more divided, and fall the lefs heavy upon individuals : which would remove what in the prefent 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, arifing greatly from this increafe of fummary jurifdiction, is productive of, 3. A third mifchief : which is, that this truft, when flighted by gentlemen, falls of courfe into the hands of thofe who are not fo ; but the mere tools of office. And then the extenfive power of a juftice of the peace, which even in the hands of men of honour is highly formidable, will be proftituted to mean and fcandalous purpofes, to the law ends of felfifh ambition, avarice, or perfonal refentment. And from thefe ill confequences we may collect the prudent forefight of our antient lawgivers, who fuffered neither the property nor the punifhment of the fubject to be determined by the opinion of any one or two men ; and we may alfo obferve the neceffity of not deviating any farther from our antient conftitution, by ordaining new penalties to be inflicted upon fummary convictions.

THE procefs of thefe fummary convictions, it muft be owned, is extremely 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 condemned. This is now
held
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held to be an indifpenfable requifite ^c : though the juftices long ftruggled the point ; forgetting that rule of natural reafon expreffed by Seneca,

“Zui ftatuit aliquid, parte inaudita altera,
Aequom licet ftatuerit, baud aequus fuit.”

A rule, to which all municipal laws, that are founded on the principles of juftice, have ftrictly conformed : the Roman law requiring a citation at the leaft ; and our own common law never fuffering any fact (either civil or criminal) to be tried, till it has previoufly compelled an appearance by the party concerned. After this fummons, the magiftrate, in fummary proceedings, may go on to examine one or more witneffes, as the ftatute may require, upon oath ; and then make his conviction of the offender, in writing : upon which he ufually iffues his warrant, either to apprehend the offender, in cafe corporal punifhment is to be inflicted on him ; or elfe to levy the penalty incurred, by diftrefs and fale of his goods. This is, in general, the method of fummary proceedings before a juftice or juftices of the peace : but for particulars we muft have recourfe to the feveral ftatutes, which create the offence, or inflict the punifhment ; and which ufually chalk out the method by which offenders are to be convicted. Otherwife 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 alfo be properly referred the method, immemorially ufed by the fuperior courts of juftice, of punifhing contempts by attachment, and the fubfequent proceedings thereon.

THE contempts, that are thus punifhed, are either direct, which openly infult or refift the powers of the courts, or the perfons of the judges who prefide there ; or elfe are confequential,

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^c Salk. 181. 2 Lord Raym. 1405.
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which
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which (without fuch grofs infolence or direct oppofition) plainly tend to create an univerfal difregard of their authority. The principal inftances, of either fort, that have been ufually ^d punifhed by attachment, are chiefly of the following kinds. 1. Thofe committed by inferior judges and magiftrates : by acting unjuftly, oppreffively, or irregularly, in adminiftring thofe portions of juftice which are intrufted to their diftribution ; or by difobeying the king's writs iffuing out of the fuperior courts, by proceeding in a caufe after it is put a ftop to or removed by writ of prohibition, certiorari, error, fuperfedeas, and the like. For, as the king's fuperior courts (and efpecially the court of king's bench) have a general fuper-intendence over all inferior jurifdictions, any corrupt or iniquitous practices of fubordinate judges are contempts of that fuper-intending authority, whofe duty it is to keep them within the bounds of juftice. 2. Thofe committed by fheriffs, bailiffs, gaolers, and other officers of the court : by abufing the procefs of the law, or deceiving the parties, by any acts of oppreffion, extortion, collufive behaviour, or culpable neglect of duty. 3. Thofe committed by attorneys and folicitors, who are alfo officers of the refpective courts : by grofs inftances of fraud and corruption, injuftice to their clients, or other difhoneft practice. For the mal-practice of the officers reflects fome difhonour on their employers : and, if frequent or unpunifhed, creates among the people a difguft againft the courts themfelves. 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 efpecially at the coft of either party ; and other mifbehaviours or irregularities of a fimilar kind : but not in the mere exercife of their judicial capacities, as by giving a falfe or erroneous verdict. 5. Thofe committed by witneffes : by making default when fummoned, refufing to be fworn or examined, or prevaricating in their evidence when fworn. 6. Thofe committed by parties to any fuit

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^d 2 Hawk. P. C. 142. & c.
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or proceeding before the court : as by difobedience to any rule or order, made in the progrefs of a caufe ; by non-payment of cofts awarded by the court upon a motion ; or by non-obfervance of awards duly made by arbitrators or umpires, after having entered into a rule for fubmitting to fuch determination ^e. 7. Thofe committed by any other perfons, under the degree of a peer : and even by peers themfelves, when enormous and accompanied with violence, fuch as forcible refcous and the like ^f ; or when they import a difobedience to the king's great prerogative writs, of prohibition, habeas corpus ^g, and the reft. Some of thefe contempts may arife in the face of the court ; as by rude and contumelious behaviour ; by obftinacy, perverfenefs, or prevarication ; by breach of the peace, or any wilful difturbance whatever : others in the abfence of the party ; as by difobeying or treating with difrefpect the king's writ, or the rules or procefs of the court ; by perverting fuch writ or procefs to the purpofes of private malice, extortion, or injuftice ; by fpeaking or writing contemptuoufly of the court, or judges, acting in their judicial capacity ; by printing falfe accounts (or even true ones without proper permiffion) of caufes then depending in judgment ; and by any thing in fhort that demonftrates a grofs want of the regard and refpect, which when once courts of juftice are deprived of, their authority (fo neceffary for the good order of the kingdom) is intirely loft among the people.

THE procefs of attachment, for thefe and the like contempts, muft neceffarily be as antient as the laws themfelves. For laws, without a competent authority to fecure their adminiftration from difobedience and contempt, would be vain and nugatory. A power therefore in the fupreme courts of juftice to fupprefs fuch contempts, by an immediate attachment of the offender, refults from the firft principles of judicial eftablifhments, and muft be an infeparable attendant upon every fuperior tribunal.

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^e See Vol. III. pag. 17.
^f Styl. 277. 2 Hawk. P. C. 152.
^g 4 Burr. 632. Lords Journ. 7 Febr. 8 Jun 1757.
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Accordingly we find it actually exercifed, as early as the annals of our law extend. And, though a very learned author ^h feems inclinable to derive this procefs from the ftatute of Weftm. 2. 13 Edw. I. c. 39. (which ordains, that in cafe the procefs of the king's courts be refifted by the power of any great man, the fheriff fhall chaftife the refifter by imprifonment, “ a qua non deliberentur fine fpeciali praecepto domini regis :” and if the fheriff himfelf be refifted, he fhall certify to the court the names of the principal offenders, their aiders, confenters, commanders and favourers, and by a fpecial writ judicial they fhall be attached by their bodies to appear before the court, and if they be convicted thereof they fhall be punifhed at the king's pleafure, without any interfering by any other perfon whatfoever) yet he afterwards more juftly concludes, that it is a part of the law of the land ; and, as fuch, is confirmed by the ftatute of magna carta.

IF the contempt be committed in the face of the court, the offender may be inftantly apprehended and imprifoned, at the difcretion of the judges, without any farther proof or examination. But in matters that arife at a diftance, and of which the court cannot have fo perfect a knowlege, unlefs by the confeffion of the party or the teftimony of others, if the judges upon affidavit fee fufficient ground to fufpect that a contempt has been committed, they either make a rule on the fufpected party to fhew caufe why an attachment fhould not iffue againft him ⁱ ; or, in very flagrant inftances of contempt, the attachment iffues in the firft inftance ^k ; as it alfo does, if no fufficient caufe be fhewn to difcharge, and thereupon the court confirms and makes abfolute, the original rule. This procefs of attachment is merely intended to bring the party into court : and, when there, he muft either ftand committed. or put in bail, in order to anfwer upon oath to fuch interrogatories as fhall be adminiftred to him, for the better information of the court with refpect to the cir-

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^h Gilb. Hift. C. P. ch 3.
ⁱ Styl. 277.
^k Salk. 84. Stra. 185.
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M m 2

cumftances

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cumftances of the contempt. Thefe interrogatories are in the nature of a charge or accufation, and muft by the courfe of the court be exhibited within the firft four days ^l : and, if any of the interrogatories is improper, the defendant may refufe to anfwer it, and move the court to have it ftruck out ^m. If the party can clear himfelf upon oath, he is difcharged ; but, if perjured, may be profecuted for the perjury ⁿ. If he confeffes the contempt, the court will proceed to correct him by fine, or imprifonment, or both, and fometimes by a corporal or infamous punifhement ^o. If he contempt be of fuch a nature, that, when the fact is once acknowleged, the court can receive no farther information by interrogatories than it is already poffeffed of, (as in the cafe of a refcous ^p ) the defendant may be admitted to make fuch fimple acknowlegement, and receive his judgment, without anfwering to any interrogatories : but if he wilfully and obftinately refufes to anfwer, or anfwers in an evafive manner, he is then clearly guilty of a high and repeated contempt, to be punifhed at the difcretion of the court.

IT cannot have efcaped the attention of the reader, that this method, of making the defendant anfwer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other inftance ^q ; and feems 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 procefs of the courts of equity, in the feveral ftages of a caufe, and finally to enforce their decrees, was, till the introduction of fequeftrations, in the nature of a procefs of contempt ; acting only in perfonam and not in rem. And there, after the party in contempt has anfwered the interrogatories, fuch his anfwer may be contradicted and difproved by affidavits of the adverfe party : whereas in the courts of law, the admiffion of the party to purge himfelf by oath is more fevourable to his liberty,
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^l 6 Mod. 73.
^m Stra. 444.
ⁿ 6 Mod. 73.
^o Cro. Car. 146.
^p The king v. Elkins. M. 8 Geo. III. B. R.
^q See Vol. III. pag. 100, 101.
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though perhaps not lefs dangerous to his confcience ; for, if he clears himfelfs by his anfwers, the complaint is totally difmiffed. And, with regard to this fingular mode of trial, thus admitted in this one particular inftance, I fhall only for the prefent obferve ; that as the procefs by attachment in general appears to be extremely antient ^r, and has fince the reftoration been confirmed by an exprefs act of parliament ^s, fo the method of examining the delinquent himfelf upon oath, with regard to the contempt alleged, is at leaft of as high antiquity ^t, and by long and immemorial ufage is now become the law of the land.

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^r Yearb. 22 Edw. IV. 29.
^s Stat. 13 Car. II. ft. 2. c. 2. §. 4.
^t M. 5 Edw. IV. rot. 75. cited in Raft. Ent. 268. pl. 5.
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