CHAPTER III.

ON THE VARIOUS MODES OF ADMINISTERING JUSTICE.

27. Trial by a single Magistrate. - Whatever superior knowledge and acuteness may be possessed by persons, who make legal enquiries and adjudications the business of their lives, experience has shewn that the wisest Magistrates are open to the bias of political feelings, of self-interest, of favor, or of aversion; that the habit of dispensing punishment, frequently renders men less alive to the finer feelings of humanity, and that uncontrolled power is almost always abused.

And popular opinion attaches even more weight to these objections than they probably deserve. The decision of an individual is generally attributed to some personal motive or sinister bias, by one party at the least; the fear then is of the man, not of the law; the trust is in the favor of the individual in authority, not in the justice of the case. A single Magistrate therefore, ought not to have the power of deciding any question affecting the property, liberty, or character of the subject, unless his decision be subject to an appeal to a jury. With this safe-guard provided, the adjudication of pecuniary fines or short confinement, under regulations of police, may be safely and advantageously entrusted to a single Magistrate.

28. Trial upon written pleadings is the most tedious and expensive mode of trial. Of the ruinous and distracting expenses, delays, and disappointments, incident to trials upon written interrogatories, answers, and pleadings, little need be said here. The miseries entailed upon the people of England through proceedings in the High Court of Chancery and the Ecclesiastical Courts, are a reproach to the country, and to the age we live in.

29. Trial by permanent commissioners with discretionary powers in close session, is the worst instrument of trial in every sense.

* These discretionary, or to speak more plainly and correctly, these arbitrary powers, are used most oppressively for some purposes, and for others of more obvious utility they are impotent. Thus it is no uncommon thing to hear of a number of honest people, whose occupations cause them to be out in the night-time, being imprisoned in a watch-house at the discretion of a Magistrate, or even of a constable, without the imputation of a crime, and for no other reason than because they were found, not in an ale-house or dram-shop, but in a cheup Coffee-house, whither they had entered for sober and cheap refreshment; or for young people of good character, who are guilty of dancing, although innocent of any immoral conduct, to be in a similar disgraceful manner dragged to confinement. But if ruffians insult or terrify orderly citizens by their language or gestures, there are neither legal penalties nor discretionary powers to restrain their outrages. There is no law against abuse.

Where the right of deciding is vested in a particular set of men, who examine and determine in private, and according to their will, we have arbitrary power in its worst form. Men will pursue and carry objects under the concealment of an unknown majority at a bench, which they would not dare attempt if they stood individually identified with their acts. Arbitrary power, wherever endured, ought to be exercised by a single individual. He is then identified with his acts, and he knows it; something may then be expected from his fears, if nothing from his love of justice.

Of late years, a practice has been stealing on, of conferring the power of judging upon selected sets of men permanently, and endowing them with large discretionary powers. The ancient and admirable institution of Trial by Jury is not only by such means gradually superseded; but the protection of the law vanishes, when the imposition of punishments and restraints, and the disposition of the property of individuals, is subjected to the will of Justices, Commissioners, or Select Vestries, without control. This evil is seen to increase as discretionary powers are enlarged and rendered incapable of revision. Its climax is to be found in the arbitrary power of licensing victualling houses, with which the Magistrates of this country, and of no other, are fur

nished.1

30. Trial by Jury, in its genuine form (a special jury is not meant,) is free from all the above objections; a jury of

• The privilege with which Justices of the Peace are endowed, in their respective localities, of preventing the sale of beer in any house, unless furnished with their license, is notoriously and grossly abused, to the most corrupt and oppressive purposes. By allowing the sale of beer on one estate, and prohibiting it on another, they are enabled to raise the fortunes of themselves or friends, and to despoil or depopulate the estate of an opponent, at will. Millions are paid for these licenses, and combinations and monopolies are barefacedly formed by means of them, to enhance the price of one out of the two chief necessaries of life. It has been proved, before the House of Commons, that at the least a penny a quart extra is paid for beer, in consequence of the licensing system; that such penny a quart amounts to a poll tax of 850,000l., on the poor of London alone, and between four and five millions sterling, upon the nation at large; a sum equal to the whole revenue of the English Government in the reign of George the First. With all this power for grinding the laboring poor, and filling the pockets of the license-mongers, not a shilling thus exacted finds its way into the public coffers. The families of many a respectable victualler, under the baneful exercise of licensing power, have been reduced from respectability to pauperism, without a trial, an accuser, or the imputation of a fault. With all this strength for sinister purposes, the discretionary or arbitrary power thus given is impotence itself in the correction of disorders, for which correction the power seems to have been originally created.

twelve citizens taken by lot, from a mass of respectable persons, who are all unobjectionable in the eyes of the parties in litigation, who see the accuser, the accused, and the witnesses, face to face, and who are therefore enabled to judge by their looks, tone, and manner, as well as by their words; who are assisted in the opinions they form by the exposition of skilful counsel, and by the instruction of learned judges; whose judgment, if misled or mistaken, is capable of revision by a new trial, and who act in open court together (and with all the parties to the suit,) exposed to the free observation of their neighbours and countrymen, offers the most impartial and just tribunal that the wit of man can devise.

Montesquieu truly says, in his "Spirit of Laws," "The judiciary power ought not to be given to a standing senate, it should be exercised by persons taken from the body of the people, (as at Athens) at certain times of the year, and pursuant to a form and manner prescribed by law, in order to erect a tribunal that should last only as long as necessity requires." "By this means the power of judging, a power so terrible to mankind, not being annexed to any particular profession, becomes as it were invisible. People have not then the Judges continually present to their view: they fear the office, but not the Magistrate."

L

31. Trial by a single Magistrate, by mutual consent, subject to appeal to a Jury. To combine the great desiderata, celerity and economy, with purity in the administration of justice, is an object of the first importance. Celerity and cheapness are compassed by a trial before a single Magistrate; but the security of the subject ought never to rest on so fallible a test. On the other hand-truth, impartiality, and justice, are well secured by Trial by Jury. But the summoning, assembly, and array of a sufficient body of citizens to constitute a grand and a petit jury, together with the officering of an extensive court, must involve much expense, and a material consumption of time. Now it is conceived that the desirable parts of the two modes of judging, might be embodied, without including the objectionable features of either, upon the following plan:Let it be competent for a single Magistrate to try, in the first instance, minor offences-such as annoyance, abuse, slander, challenging, common assaults, cruelty to animals, indecencies, solicitation of chastity, seduction, withholding the property of another, pilfering, privately stealing, frauds and embezzlement under the value of 20s., illegal combinations in trades, and sedition-provided the prosecutor, the accused, and the Magistrate, concur in chusing that mode of trial; his deci

sion, however, to be subject to an appeal to a jury at the quarter sessions, (who in such cases should decide upon the fact, and the quantum of penalty,) provided such appeal be demanded by either prosecutor or accused, within 24 hours.

The advantages of such a jurisdiction, would be various and important. There are many accusations, against which no defence is offered, and yet prosecutors and witnesses are kept many months in suspense, and weeks in attendance, to prove their case before a jury. But the truth might be established equally well in a few hours before a single Magistrate and a great deal of trouble and expense saved. Small thefts, the initiatory acts of regular thieves; indecencies, abuse, annoyances, and other disorderly acts, which hourly disturb society, and provoke men to acts of resentment which are oftentimes fatal, are generally thought unworthy of the trouble, expense, and publicity of a Trial by Jury, and are therefore suffered to be carried on without restraint, until their fruition or consequences amount to great crimes. Pilfering and embezzlements committed by boys and girls are upon similar considerations passed over, by their parents and masters. But without material trouble and expense, and without exposing the character of the juvenile offender to the lasting disgrace of a public conviction, and thereby rendering his future condition desperate, a trial by a single Magistrate produces a corrective punishment when due; and in the facility of judging thus proposed, there is no compromise of the security of the subject, or of the ends of justice. If the accused prefers a public trial he may object to a trial by a single Magistrate, and so may either the prosecutor, or the Magistraté before whom the case is brought, if either of them thinks the case one upon which a public trial ought to be held. There must be a concurrence of all the three parties, to enter upon a summary trial; and when the trial is ended, the right of appeal is a further protection against injustice; the prosecutor and accused will both go to the second trial with advantages. The facts alleged, and the witnesses, will be completely before both parties, neither can then be taken by surprise.

32. Appeals to superior powers, and new trials upon good cause shewn, are valuable protections against erroneous judgments, as arising from false evidence, corruption, or error of any kind; but every expense attending them should be made to fall upon the appellant, if unsuccessful, to prevent appeals from being made lightly, or to burthen the prosecutor with trouble and expense. In default of payment, the appellant to be subject to confinement or solitary imprisonment, in the discretion of the court, from one to twelve weeks, or until the costs be paid.

CHAPTER IV.

RULES FOR THE ADMINISTRATION OF JUSTICE.

A careful digest of all the rules necessary for the administration of justice, including a copious illustration of points of law, ought to be settled and published by authority. It ought to be so comprehensive as to anticipate and provide for all cases that occur in practice; and, consistently with this requisite, to be as simple and general as possible, so as to produce an uniform and permanent system of practice throughout the country. The author is sensible that the following propositions fall infinitely short of what is necessary to be done under this head; some leading principles of presumed utility are submitted, but the details can only be supplied with success, by persons of long experience in judicial proceedings.

Persons are generally recognised in these propositions, in the masculine gender, and the singular number only; but the expression is to be taken to include the feminine gender and the plural number, when necessary. This understanding will save a multitude of words, and perhaps some mistakes. For instance, -the last Insolvent Debtor's Act, in its instructions to the Magistracy, says, " such Justice or Justices shall by his, her, or their own view," &c.: here the multiplication of words seems to have led to mistake rather than to certainty; unless, indeed, it is intended to provide for the possibility of an old woman being put into the commission of the peace.

33. There can be no crime or offence where there is no volition. -An insane person, idiot, or infant, or person constrained by a force which he has not the power to resist, cannot be convicted of a crime or offence."

34. No citizen shall, for any purpose, be punished or deemed guilty of a crime, unless a legal conviction has established the fact.

35. No citizen shall be arraigned for an infraction of a law, which was not made until after the commission of his imputed crime or offence.

All infractions of the law are offences, but the appellation crimes is limited to offences of dishonesty, (excepting the withholding of another's property,) offences against and in the administration of justice, and such of the offences under the heads Lust and Malice, as exceed " solicitation of chastity" and "rout."