sums up to those of a large amount; and, in some cases, upon a second conviction the imprisonment is for a year with the addition of personal chastisement. Now the free origin of our establishments warrants the assertion that the trial by jury for criminal offences, should never be superseded, except for the ease of the subject. To assemble the freeholders too frequently for the trial of petty offences would be an intolerable burden upon the country; to commit by a long imprisonment for trial where the offence is trifling, is an oppression upon the individual. When once, therefore, the number of periods most convenient for assembling the freeholders, having consideration both to their public duty and their private occupations, is established, (as for instance in the present usage of four times a year,) the intervals between those periods ought to be the longest measure of punishment which a man should undergo by summary conviction. No offence to which an imprisonment longer than three months is attached, or a pecuniary penalty supposed to be equivalent, should be cognizable except by a jury; and to such a period, indeed, is the punishment limited by many of these statutes.

These summary proceedings are unknown to the common law; they are infringements of its principles, infringements in respect of the nature of the tribunal, infringements in respect of its want of publicity : like all penal regulations they are justified only by the necessity, and their necessity is to be measured by the want of a better jurisdiction. But let us observe the opinion of Blackstone: "This change in the administration of justice," (viz., summary proceedings before justices of the peace,) "hath, 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 "burthensome increase of the business of a justice of the "peace, which discourages so many gentlemen of rank and "character from acting in the commission."-"This back"wardness to act as magistrates, arising greatly from this in"crease of summary jurisdiction, is productive of, 3. A third "mischief: which is, that this trust, when slighted by gentle

men, falls of course into the hands of those who are not so; "but the mere tools of office. And then the extensive power

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"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 punish"ment 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 con"victions."a

Similar opinions have been pronounced from the bench by Lord Holt, Lord Mansfield, and other judges, whose legal views will not be holden rash ones, by men who venerate the best parts of our system. From these observations, however, may be excepted convictions upon offences connected with the revenue; and the reason for this exception in their favour applies as strongly against all convictions upon offences connected with the game laws. The complicated regulations of the revenue arising from the nature and manufacture of the different subjects to which they relate, though easily understood by the dealers in such articles, are extremely difficult of explanation to others; this together with the strong prejudice of numbers of that class who compose the jury impannelled at the quarter sessions, a prejudice founded upon those contracted views which mistake not only taxation however necessary, but even the protection of fair trading, for political oppression, render it inexpedient that such cases should be submitted to their determination. In the Court of Exchequer, where such trials are generally conducted before special juries, it requires the high character of the judge to infuse into their minds a security that the law is not strained, and his habits of business to distinguish to them all that is relevant, and clear up what is obscure. Whatever may have been the character of that court in times long past, it is impossible to be familiar with it now, and not perceive that any thing rather than partiality in favour of the prosecution is its present complexion. Considerations of a like nature operate against summary

a 4 Black. 281.

convictions upon the game laws. Though not very complicated, they are far from being clearly expressed; they are easily susceptible of different constructions, as may be seen from the very different constructions they have received by the magistrates who have convicted, and the court of King's Bench by whom the convictions have been reversed. Add to this the strong feelings of most country gentlemen against all violations of these laws; the trembling emotion, the morbid apprehensions which agitate their minds and lead captive their understandings when directed to this subject, as though the most precious jewel of aristocracy was linked to this sacred ancient privilege and an impartial man will readily admit that justice must run imminent danger of shipwreck before a current that sets in with such headlong rapidity.

:

The best security against this bias, is the intervention of a jury in all prosecutions connected with the game laws.

One further observation upon the subject of summary convictions. It is worthy of great consideration, whether every summary conviction ought not to be removable by certiorari to the Court of King's Bench at the option of the defendant? The importance of well considering the operation of this jurisdiction is obvious on adverting to the number of convictions in England alone in the year 1835, as set forth in the return prefixed to this article, amounting to more than 30,000. It is clear that this power must, from its extensive action, be either a great blessing or curse to the community; that the magistracy of England must take the form either of a beneficent or malignant power, dispensing largely of good or evil according to the exercise of the jurisdiction,-whether with purity, knowledge and discretion, or with their opponent qualities. If with the former, one may rejoice that the strifes and anxieties, which must otherwise have rankled for months, are now determined and disposed of as they arise; that offenders, plunged by accident or temptation into a first offence, are saved from the corrupting influence of prison associations, and the shame of a public arraignment at the assizes or sessions. But if the contrary, what numbers may be made to groan under one of the worst of political oppressions, the sense of receiving injustice under the mask of law, of drawing from what should be the fountain-head of purity a draught of bit

terness and corruption. We believe the former to be the true picture, that for one case of oppression or corruption, there are a thousand productive of good to the individuals and justice to the country. But we must not be blind to the fact, that this entirely depends upon the character of the magistrates; that however excellent they may in general be, a sense of abstraction from public censure has a direct and continuous tendency to corruption, and that the subject has a right to all the securities which a government can give for the purity and wisdom of those who administer the laws. A power of appeal by a writ of certiorari, in all cases, to the King's Bench, is a direct security both for the good conduct of the justices, and for attention and care in those who appoint them. Frequent reversals of the decisions of one justice would not only require his removal, but in some measure reflect disgrace upon those who appointed him, and prevent similar selections. The mere knowledge of such a-not theoretical but practical—liability, would stimulate his exertions to the performance of his duty. Few writs of certiorari, we believe, would issue, but the knowledge that they might is enough to operate as a great control to indolence or partiality; mankind are governed by their apprehensions, by the probable and the possible, as much if not more than by realities. If many such appeals to the King's Bench were successful, it would prove the justice of that privilege; if not, the judgment of the magistrates would be justified.

The proceeding by certiorari, is not an appeal by which the whole case is again reheard, but a removal and submission to a superior court of the record of conviction. That record contains the fact charged against the defendant,' and the evidence advanced to support it, and the superior court decides whether that fact constitutes a legal offence, and whether that evidence substantiates the fact. Where the subject is deprived of the trial by jury as to the fact, his right of reference upon matters of law to the highest tribunal becomes the more essential; and guarded by proper restrictions cannot be pro

Or, rather, it ought to contain it; for by a return to the House of Commons for 1835, in a vast variety of summary convictions, it appears that in some cases no evidence was taken down, and in many the notes were subsequently destroyed.

ductive of mischief. Due notice to the justice, with an obligation to enter into a moderate recognizance, with sureties, for prosecuting the certiorari, and a power in the justice to enforce the penalty immediately, and invest it with the county treasurer till the final decision, offer sufficient securities against an abuse of this privilege by the defendant, either from motives of vexation, or for the purpose of delay.

Originally convictions were quashed upon defects which had little relation to the substance of the charge; for the judges, in vindication of the common right of trial by jury, and acting in the spirit of our ancient institutions, regarded these convictions with a jealous eye, and held them to stricter forms, and a more elaborate technicality than indictments and ex-officio informations; this strictness has been gradually relaxed by various statutes. As none therefore but substantial objections, such as relate to the very essence of the offence and the jurisdiction of the magistrate, can now prevail; it is the more incumbent that they should be open to the best legal investigation. It is singular enough, that a few years back, a friend of liberty complained in the House of Commons of the paucity of these prescribed forms, and asserted that the length and particularity required by the general law in drawing up convictions was a great hardship upon the subject, forgetting that there is no better security against illegal convictions than the particularity which the judges have invariably required in their several parts. A short conviction is a potent scourge in the hands of a corrupt justice.

Such are the principal matters over which the direct operation of this institution extends. Its collateral effect is felt in the character of that class out of which the body is formed, and consequently of those over whom their influence extends. If every constable over the country was a police officer, and none but police magistrates were justices, not only would a system of espionage be introduced into every village, but the country gentlemen who now perform the functions of justices of peace, being stripped of their authority, and with their authority of such local knowledge as they collect in the exercise of it, would not only lose their due weight in the county, but a stimulus to useful activity, a capacity for public affairs in a direction in which it may bet