CHAPTER VIII.

NOTE ON THE SUMMARY JURISDICTION ACT, 1879.

THE above Act, which was wet from the hands of the Queen's printer when the first edition of these Notes went to press, is now no longer novel, and every Justice is more or less familiar with its principal features. Attention has been called, either in these Preliminary Notes or in the main portion of the volume, to every point of importance in which it has affected the previous course of procedure. And at the end of this chapter will be found a short analysis, which may be useful to those who would like to apprehend its entire scope without much trouble. We will, therefore, content ourselves, at present, with briefly touching upon one or two considerations of some interest.

The provision (page 5) which prohibits a single Justice from acting at all until he has been reduced to the last stage of impotence as regards coercive power, and which renders the presence of two Justices primâ facie essential in matters arising under all future Acts, is, of course, a step towards extinguishing the single jurisdiction altogether. There may be sound reason for this preference for the dual system, but to make the discovery in 1880 was to make it rather late. The matter is adverted to elsewhere, in a Note on PUNISH

MENT.

The restrictions, as regards locality, upon the discharge of judicial duty, supplemented by the invention of that miniature divan with a rather listless-looking name, the 'occasional court house,' have been indicated already, and wil

be found at page 4. They are distinguished by a conscientious ardour for innovation, which can endure to leave nothing untouched. Method and organization are to be the order of the day. Slipshod habits are to be eradicated at once. Everything is to be done regulation fashion, and with the precision expected from rank and file.

That these violent improvements should have been productive of a certain amount of perplexity and trouble is not to be wondered at. No sudden alteration, however desirable, can be made without upsetting, somebody. Whether they will conduce to the better working of an oldfashioned machine, in whose good going the country at large is considerably interested, will be discovered in due time. Method and organization may be too rigidly insisted upon. They are, after all, only means to an end, and may be means unsuited to the particular end in view. And, in the case of certain special services, it may be unwise to carry the obligations of routine to the point at which they become inconvenient and irksome, or are, perhaps unreasonably, regarded as measures of distrust.

In speaking (Chapter III.) of the prominence given by the new Act to the remedy by distress, allusion was casually made to the question as to how far facilities in the way of time, &c., should be allowed a defendant in order to collect funds to meet his fine. Upon this point the Act is far from being silent. The permission, however, to take his money by instalments, and to accept security for the amount (page 17) seems tinctured with overweening tenderness for the convenience of persons who have been condemned to make a payment which was intended to be penal and inconvenient. It is, of course, undesirable to send offenders needlessly to prison. On the other hand, since Justices must work by punishment, it may be as well not to display too vivid an anxiety to keep them out of it. We worry too much about people who have set the law at defiance, to the danger and discomfort of society. We apologize for being obliged even

to make a show of protecting our own. The rod which our grandfathers used to pickle' must be remorsefully moistened with rose-water; and we drive a fiddling bargain over the fine of which the chief sting used to lie in the swift and certain alternative.

The Act permits every person who would be liable to imprisonment upon conviction for more than three months (except in assault cases) to decline Justices' jurisdiction altogether, and to insist upon going before a jury. The effect of this is to circumscribe the authority of Justices with reference to cases which they had previously been entrusted with power to try, as well as to encumber the Sessions with matters which would otherwise have been disposed of elsewhere.

A broader question is suggested by what has just been written. Take the case of a person whose indictable offence may be dealt with and disposed of summarily under the Act, and whose sentence cannot, under any possible circumstances, exceed three months. That person must either be under sixteen, or his alleged offence must have been committed in respect of property worth less than 40s. Except in the case of a mere child, it must be one of the offences scheduled at page 39. It cannot be of any graver description. Is there any real reason why such a person should be entitled to demand judge and jury? Justices have the power of sending him to Sessions or Assizes against his will, if 'having regard to his character and antecedents, the nature of the offence, and all the circumstances of the case,' they consider it inexpedient to assume jurisdiction themselves. But is there anything dangerously daring and revolutionary in suggesting that, in these particular cases, the offender's 'rights' might very well be so far infringed upon as to give him personally no choice about it? Why should he have any such rights now-a-days? Why should the mere technical aspect of his offence, irrespective of the amount of punishment by

which it may be visited, be made a test in the matter? Why should not a Bench be entitled to say, 'We are satisfied that we can inflict adequate punishment, having regard to all the circumstances, and we intend to deal with the case ourselves accordingly.' In the great majority of instances the prisoner's prayer is, not that he may be sent for trial, but that the business may be settled upon the spot. And this petition is constantly ignored. Justices, in fact, are always anxious to relieve themselves of the responsibility of deciding cases which ought obviously to be discussed before a higher tribunal. There is little fear of their disposing of any charge which in point of fact ought to go to Sessions, or which the accused, upon any reasonable ground, may desire should be tried there. But, on the other hand, to allow the latter at his own uncontrolled option, or in the exercise of simple whim, to walk away from their jurisdiction and insist upon his privileges as a felon, or indictable misdemeanant, is carrying complaisance and scruple to the extreme.

Take a case which occurred the other day. A grocer's boy was charged with embezzling ninepence. The case was as clear as case could be. A whipping would have squared matters within half an hour. But this grocer's boy had his suspicions about the birch-rod, and was resolved to run all hazards rather than find them verified then and there. So he promptly announced that he would rather be tried by jury. Thereupon the bench had to bind over the prosecutor and some four witnesses to attend and give evidence, at all the usual trouble and loss of time. Ten days afterwards he came up for trial at the Middlesex Sessions. The Assistant-Judge summed up for a conviction, observing, as he did so, upon the absurdity of sending up a child for indictment upon such a trumpery charge. For this the committing Justices were not to blame. However, the gentlemen of the jury not only coincided in the censure, but gave emphasis to their opinion. by acquitting the prisoner.

Any scheme such as that just suggested would have been

inconsistent with the whole tenor of the recent Act. It is merely offered in this place for the consideration of those who can so far ignore tradition as to regard the matter in its practical aspect.

Speaking of the birch-rod, it seems a pity that when the framers of the Act were dealing with 'young persons' between twelve and sixteen, they should have excluded all those above fourteen from the advantage of a whipping fairly earned. Sixteen is the age of emancipation from this particular form of punishment adopted in most statutes; and nobody who looks at the general run of boys of that age, as they stand in the dock, will be of opinion that it has been fixed unduly high.

The provisions (page 36) for the summary punishment of children is unfortunate in one respect. The Act provides that for certain indictable offences the court 'may inflict the same description of punishment as might have been inflicted had the case been tried on indictment'-imprisonment, however, being substituted for penal servitude. But as regards the common offence of larceny, and a large majority of others which are triable upon indictment, there is, under such procedure, no power to inflict a fine. Consequently, the mildest form of punishment known to the law is inapplicable in the case of a child. Fining a child no doubt means fining the parent; but in the case of children who, as the phrase is, ought to have been taught better, this may be a perfectly legitimate course, and was clearly contemplated by the Act, which provides that no fine, when inflicted, shall exceed 40s. This was of course an oversight; but one would surely have expected that, when dealing specially with the case of children the Legislature would have been at the pains to devise specia, penalties, instead of hashing up the dish which had been prepared for older offenders.

It is not clear why, in an Act such as the present, the misdemeanour known as 'False Pretences' should have been excluded from the list of delinquencies made summarily triable. There seems no reason why the man who sells