what can be urged for or against any given proposition by legal professional gentlemen, whilst justice may frequently be but feebly and indifferently, if not inefficiently, administered by a refusal to hear the arguments of those whose education, habits of thought, and personal investigation have fitted them to extract the pith and essence of the matter in contention. If there be justices who, mistrusting their own judgments and the powers of their minds, seize upon the sound and reject the unsound proposition: if there are those amongst the magistracy who have so little confidence in themselves that they are apprehensive of being led away by arguments which are sophistical and hollow, such gentlemen should carefully avoid being placed in a position for which their mental qualities have unsuited them, and should not seek to officiate in a capacity requiring considerable acuteness of intellect, and strength and firmness of understanding.

CHAPTER VI.

THE PROCEEDINGS OF JUSTICES IN REFERENCE TO CHARGES AGAINST INDIVIDUALS OF INDICTABLE OFFENCES.

THE two principal classes of functions which out of sessions the justices will be called upon to perform, are those in connexion with the hearing of criminal charges, with a view to a committal for trial, and the hearing of complaints to be adjudicated upon by way of summary conviction. To these duties we shall, in the first instance, direct attention, reserving for a future consideration matters of a more special and exceptive character. First, then, of the hearing of criminal charges with a view to a committal for trial.

The mode of bringing the accused before the justice.

Summons and warrant.

There are three modes by which a party charged with an indictable offence may be brought before the committing justice: 1st. By summons. 2nd. By warrant. 3rd. By arrest without warrant. The latter mode is that adopted when any felony is committed in the presence of others who are at all times authorized to apprehend the offender, or where a charge of felony is made by a third party to a peace officer, who thereupon exercises his legal function of arresting the party accused. When, in this way, the offender is captured, he will be brought before the justice for examination at the proper time and place. The two former modes, by summons or warrant, are adopted as the justice may think that one of the two is, under the circumstances, more desirable than the other; the 11 & 12 Vict. c. 42, An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales, with respect to persons charged with Indictable Offences, which ought to be carefully consulted in the proceedings under this head, giving the justice an option, by sect. 1, as to which of the two processes he will use.

By the 1st section of the foregoing act, a summons or warrant may issue in the first instance in all cases where a charge or complaint shall be made before one or more justice or justices, that any person has committed, or is suspected to have committed, any treason, felony, or indictable misdemeanour, or other indictable offence whatsoever, within the limits of the jurisdiction of such justice; so, too, a summons or warrant may in like manner issue where any person who is suspected to have committed any such offence out of his jurisdiction, is nevertheless residing, or being, or suspected to be, within such jurisdiction.

Before, however, issuing either a summons or a warrant, a charge or complaint must be made :

and warrant.

(sect. 1.) When a summons only is to issue, Summons this charge or complaint need not be in writing, though it is quite competent for the justice to require it to be both in writing and upon oath ; but in every case in which, in the first instance, a warrant is to issue, the charge or complaint must be in writing and upon oath or affirmation: (sect. 18, form A.)

The 11 & 12 Vict. c. 42, supplies an ample body of forms for the use of justices acting under that statute, which regulates a considerable portion of the practice in the cases to which attention is now being directed, and which it will be well for justices to refer to and to adopt. In the instance, therefore, of a charge of an indictable offence being preferred against a party, the justice will take the information according to the form (A.) set out in the schedule to the act. If the charge is orally taken, not upon oath, a short statement of the case will be made by the prosecutor or some one who knows the facts. If, however, the justice thinks it necessary to have it in writing, or a warrant is to issue, then it should be taken according to the form prescribed, and upon oath (sect. 8.)

As regards the granting of a summons, it may be observed that a practice has somewhat generally obtained of justices signing a number of summonses in blank, to be filled up by their clerk as occasion may require, and as the issuing of a summons is more a ministerial than a judicial act, and it may be highly inconvenient to all parties, and peril, in some cases, the ends of justice to incur the delay, sometimes unavoidable, in procuring the actual presence of a justice to take the complaint-such a practice is little open to censure, on the score of its tending to prejudice the course of justice; but as the Legislature has specifically required the actual signature of the justice to the summons, and has

Summons and warrant.

rendered the issuing of such summons dependent upon a charge or complaint being made before him (sects. 1 and 9), there being also no provision in the act enabling him to delegate his powers to another, it would seem that the only strictly correct practice is for the justice himself, in every case, to take the charge or information, and thereupon to exercise his own discretion as to whether or not he will issue his summons. Where a warrant is to issue in the first instance, it is imperatively necessary that the information should be taken in the presence of the justice who grants it, otherwise consequences of the most serious nature may result: (Caudle v. Seymour, 1 Q. B. 889.) In either case one justice only may receive the charge, and grant the summons or warrant.

The form and contents of both the summons and warrant are fully provided for by sects. 9 and 12, and forms B. and C. When granted, the summons is to be served as directed by sect. 9, by a constable or other peace officer; the warrant also is to be executed by some constable, peace officer, or other specified person, as pointed out by sect. 10. This, however, being a matter peculiarly for the attention of the clerk to the justices and the peace officers respectively, need not further be entered into.

When an indictment has been found against a party not already committed upon the charge, the duty of the justice is somewhat peculiar. Upon the production to him of the certificate of the clerk of the indictments, or clerk of the peace, of the indictment having been found, he (the justice) is to issue his warrant (form G.) to apprehend the party indicted, and to cause him to be brought before him, and upon his apprehension, and its being proved upon oath or affirmation that he is the same person, he is, without further examination, to commit him to

trial, or admit him to bail. And if the person so indicted is confined in any gaol for any other offence than that charged in the indictment, the justice, upon like proof of identity, is to issue his warrant (form I.) to the gaoler to detain him until, by a writ of habeas corpus, he shall be removed for the purpose of being tried, or be otherwise removed or discharged by due course of law.

By sect. 4 of the foregoing enactment, a justice may issue his warrant as before mentioned, or any search warrant, on a Sunday, as well as on any other day. This, however, will not authorize the issuing of a summons on that day.

upon the

appearance

Upon the day appointed for the apppearance Proceedings of the accused, if he have only been summoned appearance and he do not appear, the justice should inquire or nonas to the particulars of the service, and should of the parties. it transpire that the defendant has not been served either personally, or by the summons being left with some person for him at his last or most usual place of abode, the justice should either issue a fresh summons or grant a warrant of apprehension, taking care, however, in the latter case, that a charge should be taken in writing, and upon oath: (sect. 9.) If, however, the defendant has been served in either of the ways pointed out, but do not attend, and no satisfactory reason be given for his nonattendance, the justice may, upon being satisfied of the fact of service by examining the constable, issue his warrant of apprehension, and in this case without any previous charge in writing, or on

oath.

If no one appear on behalf of the prosecution, nor any satisfactory reason be given for the nonattendance, the justice should discharge the prisoner: if, however, a valid reason be given for the absence, and a postponement be requested,