or inquiry," and forfeit 40s., which the justice was directed to certify, together with the examinations, into the Exchequer. This also is enumerated by Lambard, amongst the things that justices may execute summarily out of sessions. But what was the mode of proceeding contemplated in framing these acts, or whether these words are sufficient to convey an authority then perfectly novel, and which we might therefore expect to find explicitly described, must remain a matter of doubt. The author already referred to seems to have been at a loss to define the method of proceeding intended by the expressions in those acts, and to have hesitated in pronouncing that a sole power of determining was vested in justices, without a jury; "for," he observes, "how far this discretion and the word otherwise, may be extended, in this and such like cases, cannot be foretold, for it is referred to the justices, and they must take counsel ex re and ex tempore for it."

This leads to another observation necessary to be kept in mind, in order to guard against a misconstruction of some of the older statutes, particularly those in the reign of Hen. 7, which are worded in a manner that may at first sight appear to imply a power of summary conviction, in contradistinction to the trial by the country, but which have, in reality, a totally different view. The statutes alluded to are those which make use of expressions of the following import; viz., that the justices of the peace may hear and determine the offences specified, " as well by inquisition as by information and proofs," (as in the Game Act, 11 Hen. 7, c. 17); or, "that the justices, upon examination of two lawful witnesses, may award process in the same manner as upon presentment or inquisition of twelve men," (as in the statutes 5 Eliz. c. 12, 4 & 5 Phil. & Mary, c. 2, 5 Edw. 6, c. 14). But it is to be observed, that when a power was given to justices of peace to hear and determine, &c., this conferred an authority only to proceed in the common law way, by indictment found by the grand jury,—or, as the statutes express it,

upon inquisition and presentment of twelve men. Upon this proceeding, the justices had authority of course to award process, but they had no power to do so, or to inquire upon the presentment or information of a private relator (g); and therefore the informer had no means of recovering at the sessions a share of the penalty, unless such a mode of recovery was expressly authorized by statute; which, according to Mr. Lambard, was the sole object of the provisions above alluded to. This purpose, though sometimes expressed with a conciseness that may give rise to some ambiguity, is in certain acts explained in a manner that serves to illustrate the meaning of those which are less explicit of such it is sufficient to refer to those of 25 Hen. 8, c. 13, s. 5, and 3 Jac. 1, c. 13.

The forfeitures imposed by penal statutes, if not otherwise specially disposed of, belonged to the crown; but experience proved, that the admission of the informer to a share was equally necessary to the purposes of police and revenue. All the acts, however, prior to the reign of Henry 7, which entitle the informer to a moiety of the penalty, direct the mode of recovery to be by action of debt, bill, or plaint; nor, before that time, does there appear to be any instance of a power to proceed by information at the sessions for penalties. In that reign it was, that it became usual to insert, in penal statutes, the provisions authorizing the recovery of the penalties before the justices in sessions by information, and empowering them to award process upon the information of any person, as they might upon indictment or presentment by the inquest. The policy of affording this encouragement to prosecutions, which brought a share of the penalties to the crown, is characteristic of the ruling disposition of the sovereign; and, in that light, it may be worth remarking, that the last session of his reign affords a striking proof of the influence of that spirit upon the character of the laws, by the iniquitous principle of making (g) Lamb. 501.

the justices sharers in the penalties of their own inflicting. The statute 19 Hen. 7, which imposed most unusually heavy penalties upon the use of various modes of taking deer, authorized two justices in sessions arbitrarily to examine and commit persons whom they judged guilty, until payment of the fines to the king; and declared them entitled to one-tenth of all such fines, "for their labour in that behalf." This disgraceful pattern, as it had no precedent, has happily had no copy in our law. The power, however, of inquiry on information by justices in sessions, which took its rise about the period we are speaking of, continued to prevail, in penal statutes of the succeeding reigns, till the mode of recovery, by summary examination before a single justice or justices out of sessions, was more commonly substituted in its stead.

To return to our first inquiry, concerning the period when that measure came into use, it has been already remarked, as a settled maxim, that a naked authority to hear and determine implied a proceeding conformable to the common law mode of determination only, i. e., by a jury; and one instance only, that of 17 Edw. 4, c. 4, is noticed earlier than the reign of Henry 7, which carries the appearance of a more arbitrary and discretionary jurisdiction. But, in the eleventh year of that king's reign, the legislature was induced to break down all respect for the ancient common law mode of trial, by an act that, in spite of the fair preamble, betrays its true source in the rapacious policy of the monarch, viz., 11 Hen. 7, c. 3; which, pretending that many wholesome statutes were not executed, by reason of the embracery and corruption of the inquests, ordained, that it should be lawful for the justices of assize, and the justices of peace, in every county, upon information (for the king), at their discretion, to hear and determine all offences short of felony against any statute then in being (h). This discretionary authority, fettered by no

(h) 11 Hen. 7, c. 3. See the statutes printed by Powell, 1551, vol. i.; and 4 Inst. 40, 41.

By

rules, and intentionally absolved from the observance of law and usage, enabled the justices to execute all penal statutes without any presentment or trial by jury. The real intention of the statute, which was that of replenishing the exchequer by the terror of arbitrary and vexatious prosecutions, under colour of penalties, upon all the most obsolete penal statutes, however obscure or inconsistent with the times, was rigorously seconded by Empson and Dudley, whose activity was stimulated by a grant of the extraordinary office of Clerks of the Forfeitures. their means the mischiefs of a power, so liable in any hands to abuse, became an instrument of intolerable oppression, the more galling from its pretensions to legal authority. Among the first acts, therefore, of the parliament which commenced with the succeeding reign, was the abolition of that dangerous power, by the repeal (i) of the statute, and the attainder of the two obnoxious instruments of its abuse; whose atonement, according to the maxims of popular justice, was measured by the iniquity, rather than the illegality, of their acts.

After this short and unfavourable experiment, which Sir E. Coke adduces as an example of the danger of altering the common law, and which has never been imitated by a like general law of the same nature, the legislature, for some time, seems to have been, not without reason, sparing in the sanction of a summary jurisdiction, even in particular offences. And we have already (k) had occasion to remark the means unsuccessfully tried in the thirty-third year of Hen. 8, to provide for the accumulated execution of the penal statutes, without deviating from the common law rules of judicature.

The earliest statute, upon which a summary conviction by a justice is on record, or of which a precedent is found in the books, is that of 33 Hen, 8, c. 6, against the practice of carrying daggs, or short-guns. Mr. Lambard has given

a precedent of a conviction upon this statute (1); and there appears to have been one removed into the Court of Queen's Bench by certiorari, as early as the forty-third year of Elizabeth, 1600: and this very case affords a proof of the objection, which, in the state of manners at that day, might well exist against relaxing the jealousy of the common law, by entrusting any thing like arbitrary authority in private hands. It appears that a sheriff's officer, going to execute a writ against a justice of the peace for a debt, and taking with him a hand-gun, from the apprehension of a rescue, the justice, instead of obeying the writ, apprehended, convicted, and imprisoned the officer, till he paid a fine of 10l., under colour of the act of parliament.

The few instances in which a summary power of fine or imprisonment was committed to individual justices, amounting, up to the end of the reign of Elizabeth, to no more than four or five, attest the unwillingness of the legislature to quit the safe and approved forms of criminal judicature. In the following reign the multiplied statutes against a variety of petty disorders, such as those relating to alehouses, profane swearing, drunkenness, game, wagers, embezzlements, and such like, occasioned a more frequent recourse to the summary interference of justices of peace, which was gradually extended to matters of greater importance, as the nation became more familiarised to its use; and, after the Restoration, by the first excise acts, and by several statutes affecting the regulations of trade, and, lastly, by the Game Act, 22 & 23 Car. 2, c. 25, the practice was insensibly moulded into the jurisprudence of the country; of which it still continues to form an important branch.

We shall conclude these remarks with briefly noticing the changes which have been made in the system since its institution; the most material of which is the right of appeal.

(7) Chap. VII., p. 297.