« SebelumnyaLanjutkan »
or misdemeanors, under the degree of treason, felony or mayhem. These latter crimes are referred for trial to the court of the lord high steward of the university. For a century past, these proceedings, have not been reduced into practice.
CHAPTER XX.-SUMMARY CONVICTIONS.
Proceedings in Criminal Courts. Proceedings for the punishment of offences in the courts of criminal jurisdiction are easy and simple; the law not admitting any fictions, as in civil
These proceedings are of two kinds: summary and regular.
Term Defined. A summary proceeding is for the conviction of offenders, and the inflicting of certain penalties created by parliament. There is no intervention of a jury, but the party accused is acquitted or condemned at the discretion of him, whom the statute has appointed for his judge. Of late it has been so extended, as to threaten the disuse of our trials by jury.
1. Offences against the Revenue. Of this summary nature are all trials of offences against 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 county. The power of these officers of the crown has become very formidable. .
2, Offences against the Public Peace. Summary proceedings may be instituted before justices of the peace, in order to inflict petty pecuniary mulcts for the commission of disorderly offences, such as profanity, drunkenness and vagrancy; and which were formerly punished by the verdict of a jury in a courtleet. This change in the administration of justice has resulted in the almost disuse of the court-leet and sheriff's tourn, and in the burthensome increase of the business of a justice of the peace; whereby men of character are led to refuse that position, and it sometimes devolves upon objectionable personages.
Proceedings. The process of these summary convictions is speedy. One check however exists upon them, by making it necessary to summon the party accused, before he is condemned. After this summons, the magistrate may examine witnesses upon oath, and then enter his written conviction; upon which he usually issues his warrant, either to apprehend the offender, or else to levy the penalty incurred, by distress and sale of his goods. If no special statute exists, allowing summary proceedings, parties can only be convicted by indictment or information at the common law.
Contempts, Punishable by Attachments. These attachments have been immemorially used by the superior courts of justice. Contempts 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 plainly tend to create an universal disregard of their authority. The principal instances of either sort, punishable by attachment, are these:
By Inferior Judges and Magistrates. This occurs, when such officials act unjustly, oppressively or irregularly in the administration of their offices, or when they disobey the king's writs issuing out of the superior courts, by proceeding in a cause, after it is ended or removed by writ of prohibition, certiorari, error, supersedeas and the like. Any corrupt or iniquitous practices of subordinate judges are contempts of the superintending authority of the king's superior courts, whose duty it is to keep them within the bounds of justice.
By Sheriffs, Bailiffs and Jailers. Offences committed by 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.
By Attorneys and Solicitors. These are also officers of the court, and may be punished in this manner in gross cases of fraud and corruption, injustice to their clients and other dishonest practices. For the malpractice of the officers reflects some dishonor on their employers, and if frequent or unpunished, creates among the people a disgust for the courts themselves.
By Jurymen, Such as making default, when summoned; refusing to be sworn, or to render any verdict; eating or drinking without the leave of court, and especially at the cost of either party, and other misbehaviors or irregularities; but not in the mere exercise of their judicial capacities, by giving a false verdict.
By Witnesses. Such as making default when summoned, refusing to be sworn or examined, or prevaricating, when sworn. By the Parties to the Suit. As by disobedience to any order or rule, made in the progress of a cause; by non-payment of costs, awarded by the court on 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. Indeed, the attachment for most of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for contempt of court. It has been held, that such contempts and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by a general act of pardon.
By other persons. Even by peers themselves, when enormous and accompanied with violence, such as forcible rescous or the like; or when the acts committed import a disobedience to the king's prerogative writs of prohibition or habeas corpus, they are punishable in this summary manner.
Some of these contempts may arise in the face of the court, as by rude behavior, by obstinacy or prevarication; by breach of the peace or any wilful disturbance; or may arise elsewhere, as by disobeying the king's writ, or the rules of 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 permission) of causes pending; and by any act showing a gross want of the respect due the court.
Necessity for such Power. The process of attachment for such contempt 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 nugatory. A power in the supreme courts of justice to suppress such contempts, by an immediate attachment of the offender, is an inseparable attendant upon every superior tribunal.
Rule to show Cause. 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 further proof or examination. But in matters occurring at a distance, of which the court cannot have so perfect a knowledge, except by the confession of the parties, 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 party suspected to show cause why an attachment should not issue against him; or in very flagrant cases of contempt, the attachment issues in the first instance; as it also does, if no sufficient cause be shown to discharge, and thereupon the court makes absolute the original rule.
Process by Interrogatories. This process of attachment is merely intended to bring the party into court; and when there, he niust either stand committed, or enter bail, in order to answer upon oath such interrogatories, as may be administered for the better information of the court, with regard to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation. If the defendant deem an interrogatory improper, he may move the court to strike it out. If he can clear himself on oath, he is discharged; if he perjure himself, he may be indicted for perjury.
Punishment. If the party confess the contempt, the court will punish him by fine or imprisonment, or both. If the contempt be of a nature, that when the fact is once acknowledged, the court can learn nothing further by interrogatories, the defendant may receive his judgment without replying to interrogatories; but if he obstinately refuse to answer, or answers evasively, he is guilty of a high and repeated contempt, and is punished at the discretion of the court.
This Equitable Process Criticised. This method of compelling a man to answer upon oath to a criminal charge, is opposed to the genius of the common law in any other instance, and is probably derived from practice in the courts of equity. Until the introduction of sequestrations, the whole process of equity courts, in the several stages of a case, and for the enforcement of the final decree, was in the nature of a process of contempt, acting in personam, and not in rem. In equity, however, a man's answer may be disproved by affidavits of the opposite party; whereas in the courts of law in these cases, if he clear himself by his answers, the complaint is totally dismissed. This mode is of great antiquity.
Criminal Proceedure. We are now to consider the regular method of proceeding in the courts of criminal jurisdiction, which may be distributed under twelve general heads:
12. Execution. ARREST.
Defined. An arrest is the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime. To this arrest, all persons are equally liable in criminal cases; but no man should be arrested, unless charged with such a crime, as will at least justify him being held in bail, when taken.
Mode of Arrest. In general, an arrest may be made in four ways:
1. By warrant.
4. Upon hue and cry.
1, The Warrant. A warrant may be granted in extraordinary cases by the privy council, or secretaries of state ; but ordinarily by justices of the peace. This they may do in cases where they have jurisdiction over the offence, in order to compel the person accused to appear before them. This extends to all treasons, felonies, and breaches of the peace, and to all such offences, as they have power to punish by statute. Sir Matthew