The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1846-09-25


Their he has been justly condemned A certiorsr re-
NEEDY s left to him. carries up the record alone and
habeas corpus he avail himself only Of objections
mitment absolutely void not vodable only Without
record therefore, and that Of proper Character the
party would be deprived OF all means Of nquring whs
Their he had been Justly condemned and be also deprived
Of efectual remedy against wanton of juris
diction He would is true the latter have his
come until he had suffered the wrong and while his con-
victon would be exceedingly prompt and summary his
remedy for the wrong done him would be very slow and
burdensome.
In all cases Of special and limited authority espcc
ally when it is penal in its character, and 10 be
cised in derogation of the law great sricness
Cb J Holtin r. VS. Whistler Holt ai5 with great pro-
priety remarks, Every body knows that this being
penal law ought by equity and reason to be construed
according to the letter, and no farther That it is Pc
nal is plain and that is highly the defendant is put
to summary trial different from magma eharta; for it is
a fundamental privilege to be tried by jury. Then
when penalty is inflicted, and different manner Of
trial from Magma charf6 instituted and the party Offend
ing, instead of being tried by his neighbors in q
court of justice shall be convicted by single justice in
private chamber upon the testimony OF one witness
fain would know, il on the consideration Of such law
we ought not adhere to the letter" Hawkins, Pl G
vs. Green, Cald. 39l, and Abbot, Oh. j. in II.
VS. Pain, in D. r., all maintain the doctrine that
greater certainty is required in convictions than in in
dictmens because the defendant has opportunity OF
pleading to these summary FORMS and they must be ia
the defendant.
s. 1t is well established rule that record is an alb.
soue prerequisite to commitment and that without it
not only is the party entitled his discharge but the
magistrate is liable to him in trespass In where
the magistrate had refused to give record the Court
denounced the whole proceeding as Of the many
vengeance Here not only that but gross oppres-
sion aiso-s Burr l722 The necessity and objects Of
au nss wh hu' sa S Sn centa
The best summary Of the law this subject which
have found among the many authorities which have
examined, IL in Wards Justice 705 Tit Conviction,
In these words The power of Justice of the Peace is
in restraint OF the common law and in abundance of in
charter that man shall be tried by his equals which
also was the common law Of the land long before the
great charter even from time immemoria beyond the
date OF histories and records Therefore generally nothing
shall be presumed in favor the Office Of Justice Of the
Peace but the ntendment will be against it. Therefore
by act of parliament to convict offender in summary
manner without trial by jury it must appear that he
hath strictly pursued that power Try the common
Therefore where trial by jury is dispensed whs yet
he must proceed nevertheless according to the
course Of the common law in trials by juries, and
consider himself only as constituted in the place
Of both judge and jury. Therefore there must be an
information Sa or charge against person then he
have opportunity of making defence. and the evi
dence against him must be such the common law ap-
wise Then if the person found guilty there must be
aconviction, judgment and execution, all according to
course Oh common directed, influenced
conclusion there must of the whole proceed
ngs wherein the justice must set forth the particular
and circumstances if he shall bo called to
account for the by superior court il may appear
that he hath confomed to the law and not exceeded the
hounds re'cribea to his Jurisdiction. Burns 364.
An information or charge against the defendant sum-
notice of the information in order that he may
appear and make his defonce his appearance
pearance; his confession defence the evidence he
does not Confess and the judgment adjudication All
ton 70 Robnson's Justice 542, Brockett VS.. State;
Tyler l67, People Miller; IA John r., John r. 800
The Information should correctly state the time when
taken The place. the jurisdiction before which taken and
the charge preferred IL La Roy 500, Black Com l4l
Iasn VS. Hooper 7. r. 224 SO that it may appear that
il had given within the time limited by the statute
that the power exercised at place Commensurate
with the iurisdicton-befoe magistrate having juris
aictsn at that place. y sak s that the offence was
in express terms eyery ingredient necessary to cons
tuo the crime described by the statute REX Brad
ley, 10 Mod 1885, r VS.. Freelawney I. r.. 49, Id Ray
79l, 2 T. r. 24] In describing the offence, COM
pance with the terms Of the statute will SUFFICE for
i magistrate merely states the facts OF the offence
not warrant the conclusion, he subjects himself to
criminal information, r.. VS.. Thompson 3 T. r. 10,
Pearce Q, East 1858, r. VS. Davis T. r. III, Ardy
Hoole Cowp S25 The particular circumstances which
conduce the opinion Of the magistrate must be set
forth and not the result conclusion from them,
Rob- Jus. GAS. II must appear that the accused
summoned, appeared before the magistrates Rex VS..
Allason Str 67s r. Venables H. $780, and If he
Justice may proceed to judgments but he must state all
these facts in their proper order in the conviconR vs.
simpson str Al State VS. Stokes Coke 1872; Bigelow
Chase vs. Hathaway, IA Mass. ga The plea of the
defendant must be set forth, whether of denial con-
fesson II he denies the charge must be supported
by evidence and the of the witnesses must be
out that the court msy Judge whether they are compe.
$40 The evidence should be stated to have been given
in the presence OF the accused, that may appear
he had opportunity of crossexamination Rexv. Vi
m. d. shAr nau
vs. Barwell. 7. r., rs; VS.. Lovett T. r. 1872; r.
Swallow, T. r., 2Si; r. VS.. Llay, Chit, $40. The
particularly out in the conviction that the Court
Judge whether sufficient proof appears the face Of it TO
sustain every material allega9p and to Justify the adj
Vipont, Burr, R. 1862 Rob. JUS, $50, per Id Mans
field Roxvs. Lloyd, Str 9sa, per Lord Harwck
vs. Thed Str ss per Lord Raymond Is vide Also
Rex VS.. Warnford 5 d. and r., 4se Rex vs. Done,
and A., 500 Rex vs. Taylor, Chitty, r.. 57s Common
sufficient to state that the said offence duly and
fully proved for that is to state the result evidence
REX vs. Lovet r. Iqa And the evidence for the de-
PENDANT well that for the prosecution must be
set out a Rob Just sol Rex vs. Clarke, r. r, 2lo.
The record must contain adjudication Of the magis
the prisoner Rex Harris r. r.. 2as; Mayor VS..
Mason Dali 266 And the adjudication every point
to which refers must be precise and exact judgment
for too little being as bad as judgment for too much
Mex vs. C,aIk ,n SIwp Ho Mogan ps v
y
r. Hazard Is East, 1879; Cummng's case, Greenl
r., 81 Power vs. People, John r. 292. That the de-
sign Of the conviction not merely to record the fact OF
the judgment but to show that the proceedings required
by justice had been regularly Observed and the sentence
Sy ne ianrnage md ssnasnis Of Ky ablsst ,udcss
from thel time of Lord Holt, who himself, on all oc-
casions regarded the obligations Of recording the
whole proceedings as necessary countepoise against
the liability to misapplication, to which
private and discretionary tribunal is necessarily
posed-Introduction to faley on Convictions, xXXII.
Every thing requisite to support conviction, should
appear on the conviction se6 T. r. 53s, and its vail
dty must be determined by what appears the face Of
it, not by reference dehors3. T. H. 33s. 1t will have
been in the of this examination, that the
principles which pervaded the English Courts before the
revolution have been regarded courts since that
event And it has frequently occurred to our Court, in
view Of the manifold dangers arising from the exercise
Of summary and arbitrary jurisdiction, that il was
the necessary for them to assert and maintain the
principles which personal liberty Is dependent The
Supreme Court OF Massachusetts, in Chase Hathaway,
take occasion TO say il is fundamental principle Of JUS
ce essential to every free government that every cit