By the first statutes, which gave a power to justices of the peace out of sessions to hear and determine the respective offences thereby created, that determination was final as to the facts; for a liberty of appeal, unless expressly annexed to the authority, was not, like that of suing out a certiorari, implied as a common law right.

The privilege of appealing to the sessions against the conviction of single justices, by which that authority is now so generally and properly qualified, was not known till the reign of Charles 2; though the model of an appeal in other matters might be found in the acts relating to the poor, as far back as that of Elizabeth. The earliest instance of an appeal to the sessions, against a penal conviction, is found in the Hereditary Excise Act, as it was called, 12 Car. 2, c. 23; which authorized an appeal, not indeed against the decision of justices of the peace, if they choose to act, but against that of certain sub-commissioners, on whom, in case of the neglect or refusal of the justices, the power of inflicting the penalties of the statute was devolved, but subject to the review and final determination of the justices in sessions. The first instance of an appeal from the sentence of justices of peace, is in the statute 22 Car. 2, c. 1, called the Conventicle Act; and it deserves to be remarked, that the idea of controlling the jurisdiction of individual justices seems originally to have been by allowing an appeal to the verdict of a jury; for that act, after authorising a summary examination and recovery of penalties before any two justices, gave to the party convicted the privilege of an appeal in writing, to the judgment of the justices of the peace in their next quartersessions, upon which "he may plead and make his defence, and have his trial by a jury thereupon" (m). That precedent, however, has not been copied; and the notion of an appeal to a jury seems to have been speedily laid aside; for an act of the following session, the 22 & 23

(m) Sect. 6.

Car. 2, c. 25, established the mode of an appeal which has since been uniformly adopted, viz. to the justices in sessions, but without the privilege of a trial by jury.

Prior to the passing of the Summary Jurisdiction Act, 1879, an appeal lay only when the statute on which it was founded authorised it. That act gives a general right of appeal, but limits such right to sentences of imprisonment without the option of a fine (n). The appeal to quarter sessions is either on fact or law. There is an alternative appeal on law only, by a case stated by justices for the opinion of the High Court of Justice (0).

Prior to the passing of the act of 1879 the procedure on appeal varied with the act giving the appeal. The procedure on appeals to quarter sessions is now rendered uniform (p).

The principal alterations introduced by more modern acts of parliament have been, by taking away the writ of certiorari in numerous cases, and by the frequent adoption of compendious forms, which greatly abridge the task and care of the magistrate in drawing up the conviction. The entire dispensation from any detail, either of the proceeding before the magistrate, or of the proofs in support of the fact, which these forms allow, is undoubtedly calculated to secure the execution of penal statutes, by rendering it more easy: for the conviction is thereby reduced to a mere memorandum of the judgment: and if this had been the sole purpose for which the record of the magistrate was originally required, no objection could be raised to its being rendered as concise as possible. But

(n) 42 & 43 Vict. c. 49, s. 19. Several recent Acts have given a right of appeal to "any person who deems himself aggrieved by any conviction or order made by a court of summary jurisdiction on determining any information or complaint under this Act." See Prevention of Cruelty to Children Act, 1889 (52 & 53 Vict. c. 44, s. 10), Public

Health Acts Amendment Act, 1890 (53 & 54 Vict. c. 59, s. 7), and Public Health (London) Act, 1891 (54 & 55 Vict. c. 76, s. 125).

(0) See Summary Jurisdiction Acts of 1857 (20 & 21 Vict. c. 43), and 1879 (42 & 43 Vict. c. 49, s. 33).

(p) Summary Jurisdiction Acts of 1879 & 1884.

that this was considered only as one object of it, and that the design of the conviction was not merely to record the fact of the judgment, but to show that the proceedings required by justice had been regularly observed, and the sentence legally supported by the evidence, is everywhere evinced by the language and sentiments of the ablest judges, from the time of Lord C. J. Holt; who himself, on all occasions, seems to have regarded the obligation of recording the whole proceedings as a necessary counterpoise against the liability to error or misapplication, to which a private and discretionary tribunal is naturally exposed. Considering, indeed, the severity of many of the penalties subjected to this jurisdiction, without any opportunity of pleading to the conviction, and that, moreover, if the conviction should be set aside upon appeal, yet, as the law now stands, where the magistrate does not exceed his jurisdiction or act in a matter in which he has no jurisdiction (q), nothing short of express malice in the magistrate entitles the party grieved to any redress for the inconvenience he may have been put to,it may be worthy of deliberation, whether the too prevalent use of these short forms of conviction, particularly in regard to offences of which the evidence may involve some nicety, does not, by withdrawing the principal obligation to a regular, perfect and cautious investigation, leave too little security. against the possible effects of haste, mistake, or preconception, which, without the least mixture of bad motives, may produce as much injustice as malice itself.

The changes made by the Summary Jurisdiction Act, 1879, are too important to omit from the Introduction to this work. By that act the powers of courts of summary jurisdiction have been materially increased.

The growth of petty sessions, as the regular court of first instance for the trial of offences, was then first dis

(g) 11 & 12 Vict. c. 44, s. 2.

tinctly recognized. Up to that time a single justice sitting in any place which ipso facto became an open court, possessed the full power of summary jurisdiction, except in those numerous cases-where the presence of two justices was expressly required by statute. The exception is now made the rule. In cases arising under any future act, a single justice will have no powers whatever of summary jurisdiction. Certain indictable offences are under the circumstances in the act of 1879 mentioned authorized to be dealt with summarily (r). For the first time a general power is given to a person charged before a court of summary jurisdiction to demand a trial by jury in case of offences triable summarily and punishable by imprisonment without the option of a fine for a term exceeding three months (8).

The act exhibits many instances of lenity towards offenders. A court of summary jurisdiction may, though the charge is proved, discharge the accused without punishment (t). It has power to impose a fine in lieu of imprisonment where the imposition of imprisonment is compulsory, as in the case of the Vagrancy Act (5 Geo. 4, c. 83). The minimum fine in respect of a first offence has become a thing of the past (u). A fine may be ordered to be paid by instalments or security taken for its payment (v).

(r) 42 & 43 Vict. c. 49, ss. 10—

13, 27.

(s) S. 17.

(t) S. 16.
(u) S. 4.
(v) S. 7.

PART I.

MATTERS ANTECEDENT TO CONVICTION.

CHAPTER I.

OF THE SUMMARY JURISDICTION OF JUSTICES OF THE

РЕАСЕ.

1. The Jurisdiction in general 16 | 6. Preliminaries to exercise of 2. Limits thereof, as to Resi

Jurisdiction

7. As to Nature of Offence

53

dence of Justices 18 3. As to Place of the Offence. 28 4. As to Number and Description of Justices.

5. Priority of Jurisdiction

37
53

SECT. 1. Of the Jurisdiction in general.

THE examination and punishment of offences in a summary manner by justices of the peace out of their sessions, and without the intervention of a jury or an open trial, are founded entirely upon a special authority conferred and regulated by statute. But where, owing to some omission in the statute, the power to convict summarily is not given in express words, the justices may still proceed when it may reasonably be implied, from the rest of the statute, that such jurisdiction was intended to be given to them (a). It is provided by the Summary Jurisdiction

(a) Thus, where a statute declared that any person exposing in a public place where animals are commonly exposed for sale, any animal infected with a contagious or infectious disease, should be deemed guilty of an offence, and should be liable to pay a penalty not exceeding 201.; it was held, that although there were no express words making

the penalties recoverable by summary procedure, yet that a jurisdiction was impliedly conferred upon justices to deal summarily with offences under the statute. Cullen v. Trimble, L. R., 7 Q. B. 416; 41 L. J., M. C. 132; 26 L. T. 691; Johnson v. Colam, L. R., 10 Q. B. 544; 44 L. J., M. C. 185; 32 L. T. 725; 23 W. R. 697.