Reasonable

mary cases.

sibility of the most grave and important character,-all the more grave and important from the consideration that when they act judicially, within their jurisdiction, their decision on such matters is not generally a proper subject of review. They have need, therefore, to fortify themselves with all applicable maxims and tests of truth which the wisdom and experience of the past can afford them. Some observations connected with this subject will be found in the following pages.

§ 178. When they have to determine summarily in matters doubt, in sum- criminal or penal, they ought to be governed by the wholesome English maxims which declare that "it is better ten guilty men should escape than one innocent man should be punished," and that "a person accused of any offence ought to have the benefit of every reasonable doubt"—that is, such doubt as reasonable men would act upon in the ordinary affairs of life. But in applying these maxims, they ought to remember that society and justice suffer, when guilty men escape unduly; and they should not give weight to fastidious doubts, but should exercise their judgment with vigour and ingenuous common sense, according to the dictates of an enlightened conscience.

In indictable

cases.

§ 179. In preliminary inquiries on charges of indictable offences, it is no part of the duty of the Justices to weigh the evidence minutely, or to come to a conclusion as to its precise value. As long as there is some prima facie evidence, not clearly and conclusively rebutted by other unimpeachable evidence, and indeed in all cases where there is a substantial conflict of evidence, they ought to send the case to the higher tribunal. The duties of Justices in respect of this matter are more fully adverted to in the following chapter.

They have to determine only (after remanding the accused if necessary in order to get all the evidence forthcoming against him), whether the evidence is sufficient to put him on his trial.

ON THE EXERCISE OF DISCRETIONARY POWERS.

§ 180. It will probably not be deemed irrelevant by Justices anxious to discharge the various duties of their important office with efficiency, and with satisfaction to themselves and the public, that their special attention should be called to the nature, extent, and object of the discretionary powers with which they are invested, and the responsibility arising in respect of the discharge of them.

tion is.

§ 181. "Discretion," says Lord Coke, "consists in dis- What discrecerning, by means of the law, what is just ;" and any person in a judicial position who should afford good grounds for the suggestion that in the exercise of his discretionary powers he has been affected by caprice, prejudice, private or personal feeling or interest, and has not been governed by definite principle, must thereby inflict a serious injury upon the interests of justice.

§ 182. It will be well, first of all, for magistrates to When Justices take precise notice of the cases and circumstances in and have a disunder which the law invests them with any discretionary

power.

When the law is imperative, and leaves no choice or discretion to the magistrate, he is bound by his oath to obey and enforce it, whatever conscientious objection he may entertain to the law itself, or however great hardship he may foresee will arise from its application in a particular case; and he must leave the rectification of the general evil, if any there be, to the Legislature, and the mitigation or removal of the particular hardship, to the exercise of the Royal prerogative.

cretion.

§ 183. Again, Justices are not at liberty to refuse to hear As to hearing any one who in due manner lays a complaint or information complaints. before them; and, as will be seen elsewhere, they may be called upon by the Supreme Court, by Mandamus or order, to hear cases or perform other duties when they improperly refuse to do so. But parties have no right to select the

Justices may

sit anywhere

particular magistrates before whom they shall be heard, and to call upon them to act accordingly. Where there is a Resident Magistrate in a district, cases, both for summary convictions and the examination of indictable charges, are usually taken before him; and where Petty Sessions have been proclaimed under the Act of 1865, the magistrates summoned in rotation for the appointed time would usually conduct the business.

§ 184. There is no doubt, however, that any Justice of in the Colony, the Peace for the Colony has power (1) to sit at any Petty Sessions, and act as a Justice at any place within the Colony, whether he usually acts there and resides in the neighbourhood or not.

Justices

than ordinary

place.

§ 185. But it is very obvious that a voluntary interferacting at other ence of magistrates at any place or time when and where they do not usually act, would naturally and properly excite notice and animadversion; especially if they volunteered attendance on the Bench upon occasions of inquiries directly or indirectly connected with matters specially affecting persons of their own class, or some department which they might be supposed to represent, or involving questions in the result of which they had any special though not legally disqualifying interest, or where the parties stood in any relation towards them which might be supposed to affect their minds either favourably or unfavourably: and therefore, in such cases, Justices, however conscious of integrity, and of the intention and desire to be thoroughly impartial, would probably consider it wise to refrain from attending, unless their attendance were indispensable.

Attendance on solicitation.

§ 186. It need hardly be observed that the special and extraordinary attendance of magistrates on the Bench at the solicitation of parties or their friends, would expose the administration of justice to suspicion, would imply a serious reflection upon the Justices who usually sit at the particular

(1) See ante, c. II.

time and place, and would lay a foundation for the imputation of partiality and prejudice against the Justices complying with such solicitation.

The disqualification of Justices to act, in particular cases, Interest. on the ground of interest will be pointed out in the chapter on Summary Convictions.

viction, or

§ 187. Again, it sometimes happens that it is open to Summary conmagistrates, with due direction as to the form of proceedings, commitment. to dispose of a case summarily, or to send it for trial to a higher tribunal. In such cases, if it be clear to them that the ends of justice—that is, the prevention for the future of acts such as are complained of—will be as effectually served by the former as by the latter mode of proceeding, they may exercise their discretion very properly by convicting summarily rather than committing for trial. But, to refrain from committing a person for trial, merely in order that the Justices themselves might exercise the power of deciding on the facts and convict summarily, or in cases where the penalty they have the power to enforce would clearly be inadequate to the offence, or to decide summarily merely for fear of incurring expense to the Colony, when the interests of justice would not thereby be sufficiently secured, would obviously be, at least, an injudicious use of discretionary powers.

than the one

§ 188. In ordinary cases, however, when an information Offence graver has been laid for an offence punishable summarily, if it ap- charged. pears to the Justices that there is sufficient evidence to procure a conviction for a graver offence which can be punished only on indictment, they ought to dismiss the minor charge, and direct proceedings to be taken for the purpose of having an examination instituted into the graver charge. In cases of assault, where the Justices find that the assault has been ac- Justices of companied by an attempt to commit felony, or they are of Peace Act, opinion, from other circumstances, that it is a proper subject for prosecution by indictment, they are bound to abstain from adjudicating on it, and to act as if they had no power to deal with it summarily.

1866, s. 77.

Convicting summarily, when indict

able offence charged.

Compromises.

When compounding is illegal.

§ 189. On the examination into charges of indictable offences, it may sometimes happen that the examining magistrates may see that the case is one which might more properly be dealt with summarily, as involving some minor offence which might be punished on summary conviction with sufficient severity to meet the merits, and serve the interests of public justice; and under such circumstances, if it seemed doubtful whether the indictable offence could be made out satisfactorily, or if vexation or oppression, delay or expense, would be caused by committing or holding the accused to bail for the major offence,-and it were clear that the accused would not be prejudiced by summary conviction, -the examining magistrates would probably be justified in advising or directing that the graver charge should be withdrawn, and an information laid for the offence punishable summarily. But such a course ought not to be adopted, except when the ground for its adoption is very clear.

§ 190. Questions often arise before Justices respecting the propriety of sanctioning compromises, or the withdrawal of charges; and there is no little difficulty in laying down rules for their guidance on this subject.

Desirable as it is to reconcile contending parties and prevent unnecessary litigation, the law is very jealous in matters where the interests of the public are concerned, and is slow to permit arrangements or compromises between accuser and accused.

§ 191. To compound or compromise any charge of felony or misdemeanour, or an information on a penal statute, where the offence is wholly or partly of a public nature, is an indictable offence; but a prosecution for a personal injury which might be made the subject of a civil action, and is not of a public character, as for instance an assault without a riot, may legally be compromised.

Justices before whom such last-mentioned charges come for summary conviction may properly sanction the withdrawal of the charge after such a compromise, or may inflict a merely nominal penalty.