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; from an apprehension that the duty of their office will 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 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 antient 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 antient constitution, by ordaining new penalties to be inflicted upon summary convic tions. 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; though [283] the justices long struggled the point; forgetting that rule of natural reason expressed by Seneca, Salk. 181. 2 Lord Raym. 1405. "Qui statuit aliquid, parte inaudita altera, : 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 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. (2) (2) In speaking of summary convictions by justices, it should not be lost sight of that in a great, perhaps the greater number of cases, an appeal lies from the justices to the quarter sessions or other courts, in which case the merits may be re-considered, and the same or fresh evidence be heard for and against the judgment; nor that in all cases a conviction may be removed into the court of king's bench by certiorari, unless the statute under which it is framed expressly provides to the contrary. When it is thus brought under review, as it proceeds from a jurisdiction at once extraordinary and circumscribed, the court will presume nothing in its favour, but every thing requisite to make it valid must appear upon its face. There is no doubt that this rule, which has been adhered to with laudable strictness from the proper jealousy entertained of these summary proceedings, has in many cases led to the quashing of convictions for defects of form, in which justice had been substantially done below. The legislature, therefore, has lately interfered, and by 3 G. 4. c. 23. given a form of conviction to be used in all cases in which previous statutes do not direct some other; and further enacted, that in all cases in which it shall appear by the conviction that the defendant has appeared and pleaded, and the merits have been tried, and in which the defendant has not appealed if he might, or the conviction been affirmed on 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. d 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) [284 ] plainly tend to create an universal disregard of their authority. The principal instances, of either sort, that have been usually punishable 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, error, supersedeas, and the like. For, as the king's superior courts (and especially the court of king's bench) have a general superintendance over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority, whose duty it is to keep them within the bounds of justice. 2. Those committed by sheriffs, bailiffs, gaolers, and other officers of the court: by abusing the process of the law, or deceiving the parties, by any acts of oppression, extortion, collusive behaviour, or culpable neglect of duty. 3. Those committed by attornies and solicitors, who are also officers of the respective courts: by d 2 Hawk. P. C. c. 22. on appeal, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal one as will be agreeable to the justice of the case. This statute seems to put the law as to convictions on a right footing; it is not proper that any thing, even if objectionable in principle, should in courts of justice be met by astute and cavilling constructions; on the other hand, no favour should be shewn to loose and incorrect proceedings; and the statute, by leaving it to the judges to distinguish between formal and substantial defects, and protecting the former only, has preserved untouched to them their constitutional power of watching over and restraining the proceedings of the inferior magistrates. gross instances of fraud and corruption, injustice to their clients, or other dishonest practice. For the mal-practice of the officers reflects some dishonour 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 misbehaviours 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 [285] any rule or order, made in the progress of a cause; by nonpayment 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 e. 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 a contempt of the authority of the court. (3) And therefore it hath 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. And upon a similar principle, obedience to any rule of court may also by statute 10 Geo. III. c. 50. be enforced against any person having privilege of parliament by the process of distress infinite. 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 rescous and the like; or when they import a disobedience Sce Vol. III. pag. 17. Styl. 277. Cro. Jac. 419. f 2 Hawk. P. C. c. 22. s.33. Salk. 586. (3) And therefore the different acts for the relief of insolvent debtors and others from imprisonment extend to persons in custody for contempts of this kind. See Vol. III. p. 416.(n. 7.) to the king's great prerogative writs of prohibition, habeas corpus, and the rest. Some of these contempts may arise in the face of the court; as by rude and contumelious behaviour; 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 any thing, in short, that demonstrates a gross [286] want of that 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. (4) 1 Burr. 632. Lord's Journ. 7 Feb. 8 Jun. 1757. (4) The question of the legality of publishing true statements of the proceedings of courts of justice has naturally excited much attention. In principle it is not a very difficult one. The public good is the final, and the advancement of justice the secondary end of all courts of justice; and both reason and experience shew that the giving full publicity to their proceedings tends very strongly to make them answer both these ends. It will follow, therefore, as a general rule, that publication of their proceedings is lawful. But reason and experience also shew that, under certain circumstances, publicity may defeat those ends; whenever, therefore, these occur, it will, upon the same principle, be unlawful. Tried by this test, it seems that the publication of all preliminary or unfinished proceedings must be unlawful, because they present a partial statement, and pre-occupy unfairly the minds of those out of whom are to be selected the ultimate judges of the case; in so doing it is clear that they pervert, instead of advancing justice, and therefore must obstruct the public good. Much undoubtedly may be said in favour of the publication of preliminary proceedings before justices of the peace; the strength of the argument, however, must rest on the check which it imposes upon any corrupt or arbitrary practices by them. But when, on the one hand, it is considered how many checks a justice of the peace would still act under, even were this removed; and, on the other, that no misconduct which he can be guilty of in this way, whether it be in wrongfully committing, bailing, or discharging, is ever final; there will still remain a great balance of public convenience in favour of repressing such publication. Another case to which the same test may be applied, and where the same conclusion will follow with less question, is, where the proceedings relate to |