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RIGHT HON. ROBERT PEEL, M.P.
THE EFFECT AND OBJECT OF HIS ALTERATION
IN THE LAW OF ENGLAND,
WITH REFERENCE TO THE EXTENSION OF
THE JURISDICTION OF JUSTICES OF THE PEACE.
BY CHARLES BIRD, BARRISTER-AT-LAW.
Gascoyne Place, Plymouth, 2d Nov. 1827. Ignorance or treachery has crowned your brows with the civic wreath; in the name of Justice and of Truth, for what For the extension of a jurisdiction which the judges of England have ever viewed with jealousy, and have invariably pronounced to be a restriction of the Common Law, of a jurisdiction which was in the days of Lord Holt, compared with its present magnitude, as a mole-hill to a mountain, and which even then, that intrepid lawyer denounced as a violation of the Great Charter of our rights. Such, Sir, is the unaccountable infatuation and blindness of your tooconfiding country, that it would little astonish me, after the perusal of that Act, which will transmit your name to posterity either with honor or with infamy, to hear that at the constitutional ineetings in London, the truly patriotic toast of “ Erskine and Trial by Jury," had given place to that of “ Peel and Trial by Priests.” How is it, Sir, that the eyes of that great man are scarcely closed in death, ere you step forth, and, with unholy hand, deface the glorious palladium of our laws, the fearless advocacy of which raised him to the highest civil office in the state which a subject can enjoy, and conferred on his name honor immortal ?-Great God! what a VOL. XXIX.
NO. LVII. G
revolution in the laws of my country! In how short a space of time, and how quietly and silently has it been effected. Startle not, Sir, at the word revolution, for history will inform you that revolutions oft-times revel in the calm, though they sometimes ride on the storm. But, Sir,
We will meet at Westminster, where I now pledge myself to my country to join issue with you on the most awful question that can interest a free people. Should the present age do to either of us injustice, my prayer shall be that posterity may reverse the judgment. I will there, when the parliament assembles, petition the legislature for the restoration of trial by jury, the revision of the subordinate courts of justice, the institution of competent legal tribunals, and for the gradual and eventually the total exclusion of the priesthood from the magistracy of England.
Gascoyne Place, Plymouth, Devon, SIR,
5th December, 1827. Since my last address to you, I have been informed that you are not deeply versed in the laws of your country: this, I must believe, or conclude, that at the moment when you framed the second section of your Act (as it is commonly called) which abolished the Common Law distinction between Grand Larceny and Petty Larceny, you knew that the Act of Parliament which passed in the eleventh year of the reign of Henry the Seventh, extending the summary jurisdiction of justices of the peace to all offences short of felony, brought Émpson and Dudley to the block; and that so intolerable were the consequent oppressions, that its repeal is recorded in our statute-book, as one amongst the mild mercies of his successor's reign; and that you also knew that Sir Edward Coke afterwards referred to it in his institute on the laws of England, not as a model for imitation, but as a beacon to warn future generations of the danger of altering the Common Law; but, Sir, as it is possible that you may never have consulted this great legal authority, I will give you his very words. Alluding to the twenty-ninth chapter of Magna Charta, which confirms to the people of England their right to trial by jury, he says:
Against this ancient and fundamental law, and in the face thereof, I find an Act of Parliament made, that as well justices of
assize as justices of the peace (without any finding or presentment by twelve men), on bare information for the king before them made, should have power and authority by their discretions to hear and determine all offences and contempts committed or done by any person or persons, against the form, ordinance, and effect of any statute made and not repealed, &c.; by colour of which Act, shaking this fundamental law, it is not credible what horrible oppressions and exactions, to the undoing of infinite numbers of people, were committed by Sir Richard Empson, Kot., and Dudley, being justices of peace throughout England; and on this unjust and injurious Act (as commonly in like cases it falleth out) a new office was erected, and they made masters of the king's forfeitures.
“But at the parliament holden in the first year of Henry the Eighth, this Act of Henry the Seventh is recited, and made void, and repealed ; and the reason thereof is yielded : for that by
of the said Act, it was manifestly known that many sinister and crafty, feigned and forged informations, had been pursued against divers of the king's subjects, to their great damage and wrongful vexation; and the fearful success hereof, and the fearful ends of these two oppressors, should deter others from committing the like, and should admonish parliaments, that instead of this ordinary and precious trial by the law of the land, they bring not in absolute and partial trials by discretion."
It is possible, Sir, that you may have been unacquainted with this terrible example, which appears not only in the learned Judge's excellent work, but also in the statute-book of the realm ; but can you have been ignorant that, only sixty years ago, the elegant commentator on the laws of England, Sir William Blackstone, expressed his fearful apprehensions of the dangerous consequences of further extending summary jurisdictions, not only in criminal but likewise in civil cases ? After alluding to the summary nature of all trials of offences, as frauds contrary to the laws of excise and other branches of the revenue, on which he says,
o we shall find that the power of the officers of the crown over the properly of the people is increased to a very formidable height," he thus proceeds :
“Another branch of summary proceedings is that before justices of the peace, in order to inflict divers petty pecuniary mulcts and corporal penalties denounced by Act of Parliament for niany disorderly offences; such as common swearing, drunkenness, vagrancy, idleness, and a vast variety of others, which used to be formerly punished by a verdict of a jury in the court-leet. This change in the administration of justice hath however had some mischievous effects; as, 1. The almost entire disuse and contempt of the court-leet, aud sheriff's tourn, the king's ancient court of Common Law, formerly much revered and respected. 2. The burdensome 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 the office would 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 on 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 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 honor is highly formidable, will be prostituted to mean and scandalous purposes, to the low ends of selfish ambition, avarice, or personal resentment. From these ill
consequences, we may collect the prudent foresight of our ancient lawgivers, who suffered neither the property nor the punishment of the subject to be determined by the opinion of any one or two mer; and we may also observe the necessity of not deviating any further from our ancient constitution, by ordaining new penalties to be inflicted on summary convictions."~4 Bla. Com. 281, 14 Edn. “It” (meaning this summary jurisdiction of justices of the peace) “ has of late been so far extended, as, if a check be not timely given, to threaten the disuse of our admirable and truly English trial by jury, unless only in capital cases.”—4 Bla. Com. 280,
Forget not, Sir, these last words “ unless only in capital cases, for they conduce most essentially to the development of the object of the second section of your Act! With respect to the extension of this jurisdiction, even in civil cases, he says :
“ It is to be feared that the general remedy, which of late hath been principally applied to cure the inconvenience arising from the disuse of the ancient county and hundred courts, may itself be attended in time with very ill consequences ; as the method of proceeding therein is entirely in derogation of the Common Law;
as' their discretionary powers create a petty tyranny in a set of standing commissioners ; and as the disuse of trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than suf
ficiently excluded in many instances.”—3 Bla. Com. 82. Again, for the very purpose of deterring future legislators from invading the Common Law, he says:
" It hath been an ancient observation in the laws of England, that wherever a standing rule of law, of which the reason, perhaps, could not be remembered or discerned, hath been wantonly broken in on by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.”
The standing rule of law, Sir, which your Act has broken in on, was the immemorial law of England, even at the date of Magna Charta. Its reason and its wisdom were so well remembered and discerned, that it had survived the cruel invasions of the Danes, and even the Conquest itself, and so endeared was it to our forefathers, that they, at the risk of their property and their lives, sword in hand, demanded and obtained its recognition and confirmation; and so jealous were their descendants of the least innovation of it, that in the course of a very few succeeding reigns there are no less than thirty instances of its confirmation. It has for nearly six hundred years since that period survived the political convulsions of our country; and scarcely has there been a writer on our law, or a judge on the bench, who has not admitted, nay, even eulogised its excellence and perfection. Of course I must except those, who attempted to confer on us the blessings of the Civil Law, to whom our ancestors made this noble reply: “ that they would not change the laws of England, which had hitherto been used and approved.” But for their patriotic opposition to its introduction, England would not now boast of the pre-eminence of her civil and religious institutions over those of the other nations of Europe. Would to God, Sir, that the people of England had made to you a similar reply!
On the subject of trial by jury the learned commentator says: “that it is that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter.- No freeman shall be taken, or imprisoned, or be disa seised of his freehold or his liberties or free customs, or be outlawed or exiled, or in any otherwise destroyed, nor will we pass on him nor condemn him, unless by the lawful judgment of his peers, or by the law of the land.'”
Perhaps you, Sir, who are a legislator, know that these latter words " by the law of the land," mean by indictment or presentment of good and lawful men.