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would remove what in the present scarcity of magistrates is really an objection so formidable, that the country is greatly obliged to any gentleman of figure, who will undertake to perform that duty, which in consequence of his rank in life he owes more peculiarly to his country. However, this backwardness to act as magistrates, arising greatly from this increase of summary jurisdiction, is productive of, 3. A third mischief: which is, that this trust, when slighted by gentlemen, falls of course into the hands of those who are not so: but the mere tools of office. And then the extensive power of a justice of the peace, which even in the hands of men of honour is highly formidable, will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment. And from these ill consequences we may collect the prudent foresight of our ancient lawgivers, who suffered neither the property nor the punishment of the subject to be determined by the opinion of any one or two men; and we may also observe the necessity of not deviating any further from our ancient constitution, by ordaining new penalties to be inflicted upon summary convictions.
The process of these summary convictions, it must be owned, is extremely speedy: though the courts of common
law have thrown in one check upon them, by making it ne[*285] cessary to summon the party accused before he is *con
demned. This is now held to be an indispensable requi-
" Qui statuit aliquid, parte inaudità allerd,
(c) Salk. 181; 2 Lord Raym. 1405.
(2) “ He who decides a case with- Serjt. Hawkins to be implied in the out hearing both parties, though his de- construction of all penal statutes ; 1 cision may be just, is himself unjust;" Hawk. P. C. 420. So jealous is the which is adopted as a principle of law law to enforce this equitable rule, that by Lord Coke, in 11 Co. Rep. 99. А the neglect of it by a justice in proceedsummons is indispensably required in ing summarily without a previous sumall penal proceedings of a summary na- mons to the party, has been treated as ture by justices of peace ; Rer v. Dyer, a misdemeanor, proper for the interfe1 Salk, 181; 6 Mod. 41 ; and see the rence of the court of King's Bench by cases collected in 8 Mod. 154, note (a). information; Rer v. l'enables, 2 Ld. It is declared by Lord Kenyon to be Raym. 1407; Rex v. Simpson, 1 Stra. an invariable rule of law, Rer v. Benn, 46; Rer v. Allington, id. 678; which 6 T. R. 198; and it is stated by Mr. has been granted upon affidavits of the
A rule to which all municipal laws, that are founded on the principles of justice, have strictly conformed; the Roman law requiring a citation at the least; and our own common law never suffering any fact (either civil or criminal) to be tried, till it has previously compelled an appearance by the party concerned. After this summons, the magistrate, in summary proceedings, may go on to examine one or more witnesses, as the statute may require, upon oath (3); and then make his conviction of the offender, in writing : upon
fact; Rer v. Haru'ood, 2 Stra. 1088; appear at a place certain : otherwise 2 Burr. 1716, 1768; Rer v. Constable, the party commits no default hy not 7 D. & R. 663; 3 M. C. 488. As appearing ; and the magistrate cannot this is a privilege of common right, proceed in the defendant's absence upon which requires no special provision to a summons defective in these particuentitle the defendant to the advantage lars, without making himself liable to of it, so it cannot be taken away by any an information ; Rer v. Simpson, 1 Stra. custom ; Rex v. Cambridge (university), 46. It has been made a question 8 Mod. 163. l'pon a sufficient infor
whether the service of the summons mation properly laid, the magistrates must be personal. It seems in general are bound to issue a summons, and pro- necessary that it should be so, unless ceed to a hearing ; and if they refuse where personal service is expressly disto do so, will be compelled by manda- pensed with by statute. Parker, C. J., mus; Rer v. Benn, 6 T. R. 195. The
was of that opinion; 10 Mod. 345. summons should be directed to the party And the provisions specially introduced against whom the charge is laid; and into many Acts of Parliaments, to make should in general be signed by the jus- a service at the dwelling-house sufficient, tice himself by whom it is issued; Rer seem to justify the inference, that the v. Sterenton, 2 East, 365.
Where a law in other cases is understood to reparticular form of notice is prescribed quire a service upon the person. Where by the Act, that must be strictly pur- personal service is not necessary, leaving sued ; Per v. Croke, Cowp. 30. The a copy at the house is sufficient; Rerv. intention of the summons being to afford Chandler, 14 East, 268; and the dethe person accused the means of making livery may be to a person on the prehis defence, it should contain the sub- mises, apparently residing there as a stance of the charge, and fix a day and
servant ; Id. ibid.
These rules apply, place for his appearance; allowing a however, only to those cases where the sufficient time for the attendance of defendant does not in fact appear ; for himself and his witnesses; Rer v. if he actually appears and pleads, there Johnson, 1 Stra. 260. A summons to
is no longer any question upon the sufappear immediately upon the receipt ficiency or regularity of the summons ; thereof, has been thought insufficient 1 Stra. 261. Paley on Convictions, 2d in one case ; 2 Burr. 681. In another,
ed. by Dowling, 21, 23. an objection made to the summons that (3) The magistrate has, in general, it was to appear on the same day, was no authority to compel the attendance only removed by the fact of the defend- of witnesses for the purpose of a sumant having actually appeared, and so mary unless where it is specially waived any irregularity in the notice; given by act of parliament. This, in Rex v. Johnson, 1 Stra. 261. It is many cases, has been done ; and in equally necessary that it should be to sundry Acts the provision is accom
which he usually issues his warrant, either to apprehend the offender, in case corporal punishment is to be inflicted on him, or else to levy the penalty incurred, by distress and sale of his goods (4). This is, in general, the method of sum
panied with a penalty on refusal to attend for the purpose of being examined. It scenis agreed that the examination of witnesses must be upon oath, and that no legal conviction can be founded ponany testimony not so taken. There is a difference in the manner in which the Acts are worded, in regard to the mode of examination to be pursued ; for, while some Acts expressly mention the testimony of witnesses on oath, others, in general terms, authorize the magistrate to hear and determine, or to convict or give judgment on the eraminalion of witnesses, without noticing the oath. But such general expressions secm, in legal construction, necessarily to refer to the only kind of testimony known to the law, namely, that upon oath. “ For,” says Dalton, “ in all cases, wheresocrer any man is authorized to examine witnesses, such examination shall be taken and construcd to be as the law will, i.e. upon oath." Dalt. c. 6, § 6; and see id. c. 115, c. 164; Plowd. 12, a.; Lamb, 517; ex parte Aldridge, 4 D. & R. 83; 2 M. C. 120; Rei v. Glossopp, 4 B. & A. 616; Paley, 33, 31. Although no inode of examination be pointed out by the statutes giving jurisdiction over the oitence; yet, as justice requires that the accused should be confronted with the witnesses against him, and have an opportunity of cross-examination, it is required by law, in the summary mode of trial now under consideration, that the evidence and depositions should be taken in the presence of the defendant, where he appears.
For though the legislature, by a summary mode of inquiry, intended to substitute a more expeditious process for the common law method of trial, it could not design to dispense with the rules of justice, as far as they are compatible with the method allopted. Indeed, it may be useful upon this occasion to notice the general
maxim which has been laid down as a guide to the conduct of magistrates in regulating all their summary proceedings, namely, that “ Acts of Parliament, in what they are silent, are best expounded according to the use and reason of the common law;" Rer y. Simpson, 1 Stra. 45. Unless, therefore, the defendant forfeits this advantage by his wilful absence, he ought to be called upon to plead before any evidence is given; 1 T. R. 320. And the witnesses must be sworn and examined in his presence; Per v. l'ipont, 2 Burr. 1163. Or, if the evidence has been taken down in his absence, and is read over to him afterwards, the witness must at the same time, unless the defendant upon hearing the evidence should confess the fact, Rer v. Hall, 1 1. R. 320, be resworn in his presence, and not merely called upon to assert the truth of his former testimony ; Rer v. Crowther, 1 T. R. 125. For the intent of the rule is, that the witness should be subjected to the examination of the defendant upon his oath ; 2 Burr. 1163; and sec Rex v. kiddy, 4 D. & R. 731 ; 2 M, C. 364. This rule is confirmed, rather than contra. dicted, by those cases wherein convictions have been sustained without expressly alleging the evidence to have been taken in the presence of the defendant; Rei y. Baker, 2 Stra. 1240; Rex v. Aiken, 3 Burr. 1786; Rev. Kempson, Cowp. 241. For it will be found that in all those cases the judg, ment proceeded upon a presumption collected from the whole conviction, that the defendant was in fact present, and did hear the evidence given, which was always admitted to be necessary to the regularity of the magistrate's proceedings; Rery. Vipovit, 2 Burr, 1163; and see Rer v. Lorat, 7 T, R. 152; Rer v. Thompson, 2 T. R. 18; Rex v. Swallow, 3 T. R. 284; Paley, 39, 40,
(4) In all cases in which magistrates to the magistrate and lay the facts are authorized, upon application, to issue before him, before proceeding to the a distress warrant for non-payment of execution of the warrant; id. 79. Per any rate, although they have no power Lawrence, J. The warrant should be to relieve, it is their duty first to call under the hand and seal of the justice, the party before them by summons, and directed to the constable, &c., of unless by Act of Parliament it is spe- the parish, &c., in which the goods to cially directed that the warrant shall be be distrained upon are found. Where issued immediately; Rex v. Justices of the justice has reasonable ground for Borough of Stafford, 5 Nev. & Man. 94. doubting his jurisdiction, the court will The power of proceeding by these com- not compel him to issue a warrant of pulsory methods is derived entirely listress, which may subject him to an from special statutory provisions, and action; Rer v. Bucks, (Justices,) 2 D. is not any necessary consequence of a & R. 687; 1 M. C. 366; 1 B. & C. conviction. If a statute only confers a 485. The warrant shortly recites the power to convict, without making pro- conviction, and commands the officer to vision for the recovery of the penalty, levy the sum specified, directing to there seems to be no compulsory means whom it is to be paid. Care must be of carrying such a law into effect. It taken that the commitment is waris usual, therefore, for the statutes in- ranted by the conviction, for a legal flicting penalties to contain an express conviction will not help an informal authority for this purpose. It is some- commitment; Rogers v. Jones, 5 D. & times directed to be exercised imme- R. 268; 2 M. C. 211; 3 B. & C. 159. liately, upon non-payment of the pe- See Bane v. Methenin, 3 M. C. 521 ; nalty; in other cases, only upon failure 9 J. B. Moore, 161; Il'ic's v. Clutterof payment after a certain number of buck, 3 M. C. 536; 9 J. B. Moore ; days. When the justice is empowered Rer v. Payne, 4 D. & R. 72; 2 M.C. to issue his warrant, on refusal or neg- 169; Rer v. Helps, 3 M. & S. 331. In lect of payment for a certain number of general the warrant should appoint a days, it seems to be understood, that time and place for returning it. Pra no demand is necessary to enable him v. Wyalt, Fort. 127; 2 Ld. Raym. 1189; to do so after the expiration of that 1 Salk 380. The constable is the time; Woutton v. Harvey, 6 East, 75. proper officer to execute the warrant ; Those statutes which give a power of Carth. 78. And he is indictable for appeal to the party convicted, fre- refusal or wilful neglect; Rer v. Hyuit, quently also provide, that, upon the Fort. 127. And see 2 Ld. Raym. 9; appeal, and security given for prosecu- 2 Rol. Rep. 78; 2 Hark. P. C. c. 16, ting it, the distress shall be stayed till § 5. If the warrant be directed to all the determination of the appeal. In constables generally, no one in partisuch cases, after the appeal is decided, cular can execute it out of his own disa if the time limited for making the dis- trict; but if it be directed to a partitress be expired, the magistrate may, cular constable by name, he may exeit seems, issue his warrant immediately cute it any where within the jurisdiewithout any fresh demand; for the time tion of the magistrate ; Per v. Weir, runs from the order; Id. Ibid. But if 2 D. & R. 444; 1 M. C. 319;'I B. & the warrant has been issued before, and C. 288. And sce Carth. 508 ; I Salk. suspended by the appeal, it is better, 176;'2 Hawk. P. C. c. 13, $ 20; 1 after the decision of the appeal, to apply Burn, Distress; Gimbert v. ('oyney,
III. Attach ments for con.
which are, di. rect, or, conse. quential
mary proceedings before a justice or justices of the peace: but for particulars we must have recourse to the several statutes, which create the offence, or inflict the punishment: and which usually chalk out the method by which offenders are to be convicted. Otherwise they fall, of course, under the general rule, and can only be convicted by indictment or information at the common law.
III. To this head, of summary proceedings, may also be tempts of courts, properly referred the method, immemorially used by the su
perior courts of justice, of punishing contempts by attachment, and the subsequent proceedings thereon.
The contempts, that are thus punished, are either direct, which openly insult or resist the powers of the courts, or the persons of the judges who preside there; or else are conse
quential, which (without such gross insolence or direct op[*28-1] position) *plainly tend to create an universal disregard of their
authority. The principal instances, of either sort, that have been usually (d) punishable by attachment, are cliefly of the following kinds:-1. Those committed by inferior judges and magistrates; by acting unjustly, oppressively, or irregularly, in administering those portions of justice which are intrusted to their distribution (5); or by disobeying the king's writs issuing out of the superior courts (6), by proceeding in a cause after it is put a stop to or removed by writ of prohibition,
(d) 2 Hawk. P. C. 142, &c.
3 M. C. 323; 1 M'Clel. & Y. 469. If anonymous case, 1 Salk. 201, it is said, the offender be a fime covert, the goods “all misdemeanors in judicial oficers of the husband are not liable to be dis- are a contempt of the court of B. R., trained for the penalty ; 11 Co. Rep. and attachments go daily against stew61. b. The constable cannot break ards, for granting attachments against open outer doors for the execution of all the party's goods. And Holt, C.J., the warrant, except the whole or part remembered a case of the mayor of of the forfeiture belongs to the king ; Hereford, who gave judgment for his 2 Hawk. P.C. c. 14, $ 5; Theobald v, own lessee in ejectment.” And see Crickmore, 1 B. & A. 227; Parton v. Rex v. Hoseason, 14 East, 606.' Williams, 3 B. & A. 330; Lamock v. (6) An attachment was ordered Brown, 2 B. & A. 592; Paley, 233, 236. against the mayor of a corporation, for
(5) There are instances upon record not making a return to a peremptory of magistrates being punished by at- mandamus, within the time prescribed tachment for acting as judges in mat- by the writ, though there was no perters in which they themselves were sonal service thereof; Rei v. Fowey, parties; the Mayor of Hereford's case, 5 D. & R. 614. 2 Ld. Raym. 766; 1 Salk. 396. In an