learning will sometimes magnify difficulties, and create imaginary distinctions; at the same time it is impossible to blame even an excess of caution in this respect, so important an object is uniformity in the legal decisions of those whose decisions are the law. Is it therefore calling upon the justices of peace for too much attention to their duties, for too much respect for the laws by which their own property is protected from spoliation, by which the liberties of men are disposed of, to require them to obey this provision in their commission, and follow the example of the judges in an instance where a good example is easily followed?

It would not however be expedient that doubtful questions of every description should be invariably reserved. Technical objections to the allegations in the indictment, if not very clear and intelligible to persons tolerably competent to consider them, may well be overruled with very little violation to the forms of justice, and none to the substance; the offence itself is neither altered nor refuted by a suspected flaw in the charge, besides which an acquittal upon a defective indictment is no bar to a future prosecution. The reservation of such objections therefore is not to be encouraged. In this respect the relative situation of the judges and justices of peace is very different. It behoves the former, who are the expounders of the law, and whose exposition is the law, to be as accurate in the determination of technical forms, as of substantial distinctions, and to deduce the first as strictly from the principles on which their rules are founded, as the latter; because in a mere abstract point of view it is important that their decisions should be in every description of case exempt from error, as far as human nature can be exempt; they should be right, for the mere sake of being right. Moreover, if forms were not strictly canvassed in the superior courts, if they were not preserved there as in a safe repository, they would soon vary and melt away, till at last the original standard would be lost, and the substance of justice endangered.

A looser adherence to technical forms in the exercise of judicial functions may be endured from justices of the peace; their duties will be satisfactorily discharged if guilt rarely

escapes detection, and innocence is free from danger. Precedents are not drawn from the quarter sessions.

But decisions upon the quality of offences are of a different character; a wrong decision there, is an imputation upon the justice of the country; a party charged with a fact as if it were a crime, which is not strictly within the definition of the crime, is as free from legal guilt, and consequently as justly exempt from punishment, as if the fact were not made out in evidence; wherever therefore the least doubt occurs in the breasts of the justices of the peace upon the nature of the crime, it is their duty to resort to the only means of resolving it; and the invariable neglect of this means diminishes both the value and respect of their tribunal. If the public knew that all doubtful points, or those supposed to be doubtful, were reserved for a higher decision, a greater confidence must necessarily be established in the general proceedings of the court, for its unassisted determination upon such questions is obviously made at hazard. A reference of their doubts to the better knowledge of the judges, which now stands an unregarded proviso in the commission, a useless incumbrance of empty words, like the charge" to try all manner of sorcery and witchcraft," which still ludicrously enough occupies its ancient position there, should be made compulsory. If justices of peace were obliged upon the motion of a counsel to refer a copy of the indictment and evidence in all cases required, to the judges at the next assizes, such copy to be signed by the counsel as a guarantee against frivolous reservations, and to be decided by the judges during the assizes, either with or without argument, the law would be better administered. A counsel, for his own reputation, would not sign a case which was free from doubt, or at least the evil of many such occasional occurrences would be less than the evil of one illegal conviction. But it might occupy a longer time than is at present afforded for the duration of the assizes; it might, if such references were frequent; but whilst political society imposes penalties for crimes, it is bound to furnish time for the defence of the criminal.

It is singular that this species of reference in criminal cases is never made in modern times, since in questions relating to the settlement of paupers where the same option exists of

resolving doubtful points by stating a case for the consideration of the Court of King's Bench, it was, before the late Poor Law Bill disposed of that subject of litigation, of very frequent occurrence. Judging, indeed, by the size of the volumes which contain the decisions of such questions, the modesty and love of justice of the magistrates appear in the most favourable point of view. And in regarding this extraneous bulk of English law, which governed the settlement of the poor, one cannot but be struck with two different impressions, one of admiration at the great diligence and subtle application of principles, employed in reconciling statutes made at different times, not under the wisest views, and often imperfectly worded; the other, of regret that so much subtlety was wasted in the creating of shadowy distinctions, upon a body of laws very little connected with any rules of natural equity. With respect to the sentence after conviction, it has been thought, and with truth, that the justices are apt to award a more severe punishment than the offence fairly warrants. This at the first impression is unaccountable, for it should seem that a body of English gentlemen, whose feelings generally lean to the side of humanity, who are not bred, practised, and hardened in the routine of judicial proceedings, where the moral is sometimes absorbed in the professional view, that the fate of a prisoner may awaken less interest than the point of law on which his life depends;—who approach to decide on the liberties of men, not with an indifference acquired in the conflicts of the bar, nor with the dispassionate abstraction which judicial habits should create, but from the bosom of leisure, or from employments foreign to such responsibility,-would act under impressions somewhat analogous to those of spectators, whose judgments are less active to perceive the necessity of punishment, than their feelings to sympathise with the convict. But this very rareness of reflecting upon legal consequences, of comparing the degrees of offences as they are disclosed in courts of criminal judicature, is one of the causes of this defect; it leaves them without an accurate measure to regulate the punishments they pronounce, and as there is no ñatural proportion, except exact retaliation, betwixt any crime and its punishment, they are either governed by some association which ought not to affect

the course of justice, or left to vacillate without a measure between the smallest and the highest penalty of the statute. Sometimes, perhaps, it is whispered that the offender is a veteran poacher, and therefore no subject for a mitigated sentence; the exaggerated susceptibility of country gentlemen upon all matters relating to the preservation of game, seems an uneradicable taint descending from our feudal forefathers. But whatsoever of evil may be traced to this source, is not attributable to the institution we are regarding, but to a system of laws not only irrational in themselves but in their operation a snare to the morals of the people, and a stumbling-block to the due administration of justice.

For this over-activity in attempting to repress crime by the severity of punishment, the success of which is doubtful, there is no remedy to be found in the direct controul of another tribunal. Perhaps an obligation to present to the judges at the assizes a written or printed statement, more full than the general calendar, of every offence tried at the two preceding quarter sessions, with the punishment pronounced upon each, might operate as an indirect controul, and induce a desire of assimilating their sentences to those of the judges. But their judicial duties are not all exercised in an open court, where many are present to aid and controul each other, subject to the observation of the public, to the attendance. and therefore the check of the Bar; there is a power conferred upon two justices, in some cases upon one, of convicting summarily in presence only of the parties concerned, without the intervention of a jury, offenders against the game. laws, offenders in petty trespasses; and by the late statutes, offenders in matters where the crime has all the qualities of theft, which must therefore be accurately distinguished by the convicting magistrate, or the defendant receives injustice. From most of these convictions an appeal lies to the quarter sessions, in many, no farther. Now though summary convictions are useful in many cases, particularly as modified in some instances in the late statutes, which give the justices of peace a wider discretion, in sanctioning a compromise with the complainant; clothing them with a greater power of reconciling disputes, and superseding the necessity of sending those to gaol, whom gaol can never improve; yet the number

of offences subjected to this species of trial is too extensive, and the record is not removable by the defendant in many cases from the quarter sessions to the King's Bench.

It must never be forgotten that trial by summary conviction is the exception and not the rule in English jurisprudence; it withdraws the subject from his boasted privilege, a trial by his peers: a fundamental principle of English freedom. That a power should be intrusted to a justice of peace, which the law refuses to the Chief Justice of England in his capacity as judge, is an anomaly requiring strong reasons of justification. If it were suggested in the legislature that many petty offences tried at the Old Bailey by a jury, could be much more conveniently disposed of by one of the judges retiring into the sheriff's room and deciding them after the summary manner, whilst his brother judge was proceeding in the ordinary course, it would startle most of those legislators who now unhesitatingly confer this power upon a single justice of peace. There was, indeed, a time in our history when this discretionary power was given to the justice of assize as well as of the peace, but the spirit which governed that reign in the exaction of penalties from the subject, is more fertile in examples to be avoided than precedents to be followed. The 11th statute of Henry VII. c. 3, affecting in the preamble to impute corruption to juries, gave authority to justices of assize, and of the peace, upon information at their discretion to hear and determine all statutable offences short of felony. This act was a ready instrument in the hands of Empson and Dudley for extracting money from the subject, to be transferred to the royal treasury, and its repeal was amongst the first proceedings of parliament in the succeeding reign.

If, therefore, it is expedient, and we think it is expedient, to create this jurisdiction over some sorts of offences, the limitation should be strictly confined within the civil necessity, and the jurisdiction carefully guarded by all the security that courts of appeal can bestow.

What are the circumstances then under which summary convictions are expedient? To lay down a principle upon the subject may be difficult; much more difficult would be the attempt to extract one from the statutes; they include various sorts of offences; the pecuniary penalties extend from small