BOOK 4, CHAPTER 20 Of Summary Convictions

formado por un único campo de gules en que aparecen tres leones pasantes y

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WE are next, according to the plan I have laid down, to take into consideration the proceedings in the courts of criminal jurisdiction, in order to the punishment of offenses. These are plain, easy, and regular; the law not admitting any fictions, as in civil causes, to take place where the life, the liberty, and the safety of the subject are more immediately brought into jeopardy. And these proceedings are divisible into two kinds; summary, and regular: of the former of which I shall briefly speak, before we enter upon the latter, which will require a more thorough and particular examination.

BY a summary proceeding I mean principally such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge. An institution designed professedly for the greater ease of the subject, by doing him speedy justice, and by not harassing the freeholders with frequent and troublesome attendances to try every minute offense. But it has of late been so far extended, as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases. For,

I. OF this summary nature are all trials of offenses and frauds contrary to the laws of the excise, and other branches of the revenue: which are to be inquired into and determined by the commissioners of the respective departments, or by justices of the peace in the country; officers, who are all of them appointed and removable at the discretion of the crown. And though such convictions are absolutely necessary for the due collection of the public money, and are a species of mercy to the delinquents, who would be ruined by the expense and delay of frequent prosecutions by indictment; and though such has usually been the conduct of the commissioners, as seldom (if ever) to afford just grounds to complain of oppression; yet when we again1 consider the various and almost innumerable branches of this revenue, which may be in their turns the subjects of fraud, or at least complaints of fraud, and of course the objects of this summary and arbitrary jurisdiction; we shall find that the power of these officers of the crown over the property of the people is increased to a very formidable height.

II. ANOTHER branch of summary proceedings is that before justices of the peace, in order to inflict diverse petty pecuniary mulcts, and corporal penalties, denounced by act of parliament for many disorderly offenses; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, for which I must refer the student to the justice-books formerly cited,2 and which used to be formerly punished by the verdict of a jury in the court-leet. This change in the administration of justice has however had some mischievous effects; as, 1. The almost entire disuse and contempt of the court-leet, and sheriff’s tourn, the king’s ancient courts of common law, formerly much revered and respected. 2. The burdensome increase of the business of a justice of the peace, which discourages so many gentlemen of rank and character from acting in the commission; from an apprehension that the duty of their office would take up too much of that time, which they are unwilling to spare from the necessary concerns of their families, the improvement of their understandings, and their engagements in other services of the public. Though if all gentlemen of fortune had it both in their power, and inclinations, to act in this capacity, the business of a justice of the peace would be more divided, and fall the less heavy upon individuals: which 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 honor is highly formidable, will be prostituted to mean and scandalous purposes, to the law 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 farther 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 necessary to summon the party accused before he is condemned. This is now held to be an indispensable requisite:3 though the justices long struggled the point; forgetting that rule of natural reason expressed by Seneca,

“Qui statuit aliquid, parte inaudita altera,

Aequom licet statuerit, haud aequus suit.”

[He who accuses another, however just it is,

is unjust unless the accused defends himself.]

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; and then make his conviction of the offender, in writing: upon 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. This is, in general, the method of summary proceedings before a justice or justices of the peace: but for particulars we must have recourse to the several statutes, which create the offense, 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 properly referred the method, immemorially used by the superior 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 consequential, which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority. The principal instances, of either sort, that have been usually4 punished by attachment, are chiefly 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 entrusted to their distribution; or by disobeying the king’s writs issuing out of the superior courts, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari [notice given], error, supersedeas [that you forbear], and the like. For, as the king’s superior courts (and especially the court of king’s bench) have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that super-intending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, jailers, and other officers of the court: by abusing the process of the law, or deceiving the parties, by any acts of oppression, extortion, collusive behavior, or culpable neglect of duty. 3. Those committed by attorneys and solicitors, who are also officers of the respective courts: by gross instances of fraud and corruption, injustice to their clients, or other dishonest practice. For the mal-practice of the officers reflects some dishonor on their employers: and, if frequent or unpunished, creates among the people a disgust against the courts themselves. 4. Those committed by jurymen, in collateral matters relating to the discharge of their office: such as making default, when summoned; refusing to be sworn, or to give any verdict; eating or drinking without the leave of the court, and especially at the cost of either party; and other misbehaviors or irregularities of a similar kind: but not in the mere exercise of their judicial capacities, as by giving a false or erroneous verdict. 5. Those committed by witnesses: by making default when summoned, refusing to be sworn or examined, or prevaricating in their evidence when sworn. 6. Those committed by parties to any suit or proceeding before the court: as by disobedience to any rule or order, made in the progress of a cause; by non-payment of costs awarded by the court upon a motion; or by non-observance of awards duly made by arbitrators or umpires, after having entered into a rule for submitting to such determination.5 7. Those committed by any other persons, under the degree of a peer: and even by peers themselves, when enormous and accompanied with violence, such as forcible rescues and the like;6 or when they import a disobedience to the king’s great prerogative writs, of prohibition, habeas corpus [have the body],7 and the rest. Some of these contempts may arise in the face of the court; as by rude and contumelious behavior; by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbance whatever: others in the absence of the party; as by disobeying or treating with disrespect the king’s writ, or the rules or process of the court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court, or judges, acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment; and by anything in short that demonstrates a gross want of the regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.

THE process of attachment, for these and the like contempts, must necessarily be as ancient as the laws themselves. For laws, without a competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised, as early as the annals of our law extend. And, though a very learned author8seems inclinable to derive this process from the statute of Westm. 2. 13 Edw. I. c. 39. (which ordains, that in case the process of the king’s courts be resisted by the power of any great man, the sheriff shall chastise the resister by imprisonment, “a qua non deliberentur sine speciali praecepto domini regis” [“no release from which without special command of the king”]: and if the sheriff himself be resisted, he shall certify to the court the names of the principal offenders, their aiders, consenters, commanders and favorers, and by a special writ judicial they shall be attached by their bodies to appear before the court, and if they be convicted thereof they shall be punished at the king’s pleasure, without any interfering by any other person whatsoever) yet he afterwards more justly concludes, that it is a part of the law of the land; and, as such, is confirmed by the statute of Magna Carta.

IF the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any farther proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him;9 or, in very flagrant instances of contempt, the attachment issues in the first instance;10 as it also does, if no sufficient cause be shown to discharge, and thereupon the court confirms and makes absolute, the original rule. This process of attachment is merely intended to bring the party into court: and, when there, he must either stand committed. or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him, for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must by the course of the court be exhibited within the first four days:11 and, if any of the interrogatories is improper, the defendant may refuse to answer it, and move the court to have it struck out.12 If the party can clear himself upon oath, he is discharged; but, if perjured, may be prosecuted for the perjury.13 If he confesses the contempt, the court will proceed to correct him by fine, or imprisonment, or both, and sometimes by a corporal or infamous punishment.14 If he contempt be of such a nature, that, when the fact is once acknowledged, the court can receive no farther information by interrogatories than it is already possessed of, (as in the case of a rescous15) the defendant may be admitted to make such simple acknowledgment, and receive his judgment, without answering to any interrogatories: but if he wilfully and obstinately refuses to answer, or answers in an evasive manner, he is then clearly guilty of a high and repeated contempt, to be punished at the discretion of the court.

IT cannot have escaped the attention of the reader, that this method, of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance;16 and seems indeed to have been derived to the courts of king’s bench and common pleas through the medium of the courts of equity. For the whole process of the courts of equity, in the several stages of a cause, and finally to enforce their decrees, was, till the introduction of sequestrations, in the nature of a process of contempt; acting only in personam [on the person] and not in rem [on property]. And there, after the party in contempt has answered the interrogatories, such his answer may be contradicted and disproved by affidavits of the adverse party: whereas in the courts of law, the admission of the party to purge himself by oath is more favorable to his liberty, though perhaps not less dangerous to his conscience; for, if he clears himself by his answers, the complaint is totally dismissed. And, with regard to this singular mode of trial, thus admitted in this one particular instance, I shall only for the present observe; that as the process by attachment in general appears to be extremely ancient,17 and has since the restoration been confirmed by an express act of parliament,18 so the method of examining the delinquent himself upon oath, with regard to the contempt alleged, is at least of as high antiquity,19 and by long and immemorial usage is now become the law of the land.

NOTES

     1.    See Vol. I. pag. 318, etc.

     2.    Lambard and Burn.

     3.    Salk. 181. 2 Lord Raym. 1405.

     4.    2 Hawk. P. C. 142. etc.

     5.    See Vol. III. pag. 17.

     6.    Styl. 277. 2 Hawk. P. C. 152.

     7.    4 Burr. 632. Lords Journ. 7 Febr. 8 Jun 1757.

     8.    Gilb. Hist. C. P. ch 3.

     9.    Styl. 277.

   10.    Salk. 84. Stra. 185.

   11.    6 Mod. 73.

   12.    Stra. 444.

   13.    6 Mod. 73.

   14.    Cro. Car. 146.

   15.    The king v. Elkins. M. 8 Geo. III. B. R.

   16.    See Vol. III. pag. 100, 101.

   17.    Yearb. 22 Edw. IV. 29.

   18.    Stat. 13 Car. II. St. 2. c. 2. § 4.

   19.    M. 5 Edw. IV. rot. 75. cited in Rast. Ent. 268. pl. 5.

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