ETER BY SIR P. BENSON MAXWELL, KT., OF THE MIDDLE TEMPLE, BARRISTER, AND CHIEF JUSTICE OF THE STRAITS' SETTLEMENTS. EDITED BY L. P. DELVES BROUGHTON, ESQ., OF LINCOLN'S INN, BARRISTER; ADMINISTRATOR-GENERAL OF BENGAL, AND LATE CALCUTTA: THACKER, SPINK & CO., PUBLISHERS TO THE UNIVERSITY. PREFACE. THIS short Treatise will be found to contain an exposition of the principles (1) upon which is founded the Procedure of Justices of the Peace and other Magistrates in dealing with criminal cases; (2) upon which Acts of the Legislature are to be interpreted; and (3) upon which evidence is received and dealt with in a judicial investigation. With regard to the former, it may be as well to make a few remarks by way of preface, because the Procedure of Magistrates in the Mofussil and of Police Magistrates and Justices of the Peace is dealt with as a whole, although there are some distinctions which, in practice, must be attended to, and which has been noticed in the course of the book. The rules for the guidance of Magistrates in the execution of their duties were, in England, prior to the year 1848, to be found only in text books and reports of decided cases. These decisions extended over a considerable period of time. They were inaccessible to the majority of the Magistrates, and their study was a work of very great labor. In the year 1848, a series of Acts were passed, under the auspices of Sir John Jervis, afterwards Chief Justice of the Common Pleas, the object of which was to reduce the principles of Criminal Procedure to a regular and simple code. The Acts, which are usually known as Jervis' Acts, are the 11th and 12th Vic., c. 42, 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; c. 43, a similar Act, with reference to summary convictions and orders; and c. 44, to protect Justices of the Peace from vexatious actions for acts done by them in execution of their duty. These three Acts now regulate the proceedings of Magistrates in England, and they are the ground-work on which is mainly based the Criminal Procedure Code now in force in India. This Code differs in some few points of detail, and it has been my business to notice these differences; but, as far as the general principle is involved, the two systems will be found almost identical. I may here state that where any alterations in the text of the author have been made by me, I have inserted them in brackets, thus [ ]. The principles upon which the exercise of jurisdiction by an inferior Court depend, require little or no variation in order to adapt them to the requirements of any particular society of persons among whom they may be introduced. When the limits of the jurisdiction are fixed, the Magistrate must act within those limits, and he must not go beyond them. Should he either decline to act or step beyond the prescribed limits, he furnishes a ground upon which the Superior Court may be asked to exercise, and will exercise, its power, to order him to proceed on the one hand, or to set aside or modify his proceedings on the other. It is unreasonable that a man should be a judge in his own cause, or that he should determine the case to the prejudice of the accused without calling upon him to hear the proceedings. Again, it is unreasonable to cite a man before a Court without telling him what charge he is called upon to meet, and giving him every fair opportunity of meeting it in open Court. When a defendant is constrained to do or suffer any. thing, he should know distinctly what he is to do or to suffer, and both he and the subordinate officer, whose duty it is to constrain him, should clearly know the limits and duration of the constraint. Should it be necessary to interfere with personal liberty prior to a judicial investigation of the case, this also must be done in form and manner authorized by law, either by means of a warrant showing clearly the authority of the person executing it, or, in cases where the public peace would be |