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law (Magna Charta, cap. 29) 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 the verdict of twelve men) upon bare information for the king before them made, should have full power and authority, by their discretion, 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committed or done, by any person or persons, against the form, ordinance, and effect of any statute made, and not repealed, &c. By colour of which act, shaking this fundamental law, it is not credible what horrid oppressions and exactions, to the undoing infinite numbers of people, were committed by sir Richard Empson, knt. and Edmund Dudley, being justices of peace throughout all Eugland; and upon this unjust and injurious act (as commonly in like cases it falleth out) a new office was erected, and they made themselves masters of the king's forfeitures." Let us hear the lord Verulam.

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They did not insist upon justice; indict ments were become burthensome and unnecessary records. They sent forth their warrants to take men, and without crowding Westminster-Hall, would convene them to their own houses, and without juries determine upon their estates and fortunes."

It is not doubted but that they extended their infant jurisdiction beyoud the limits of the act, for, as the lord Verulam farther says, "They used to charge the subjects' lands with false tenures in capite, by finding false offices, refusing to admit men to traverse those false offices by law. If any were outlawed, the law was strained to its rigour, to amount to the forfeiture of goods and lands."

After this terrible preamble, in which we find informations solemnly condemned by the two greatest lawyers in England, I am now come to the origin of them in your bench.

In the report of the committee of the House of Commons appointed to view the Cottonian library, and other records in this kingdom, Jan. 1732, I find the report of the coroner in the Crown-office, William Bellamy, whose interest it was to stand tooth and nail by informations, they being the source of the greatest part of his wealth: he says, the early records begin 1 Ed. 3. If so, we may surely expect to find the antiquity of informations, because he says the bag rolls contain an abstract of every prosecution by indictment, appeal, information, &c. He says, with regard to informations, they were very frequent in Henry 7th, and Henry 8th's time, and long before.

As to their being in Henry 7th's time, I believe him, but that there were any before I cannot believe, because I am very well assured of the contrary; it looks moreover very suspicious, that the gentleman should begin at the middle of his antiquity.

I can easily account how informations came into the King's-bench in Henry 7th's reign. The act above mentioned gives power to courts of assize, to enquire without grand juries;

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the court of King's-bench, being a court of Oyer and Terminer to Middlesex, it was included in the act. Sir Francis Winnington dates informations no higher, nor is there the least shadow of proof they were ever heard of before.

Thus, my lord, we are sufficiently clear as to the origin of your informations. I shall next pursue them to their present growth.

Sir Francis Winnington observes, that in Rastal's and Coke's Entries, there are no informations, but only upon penal statutes; and in Rastal, says he, there is hardly one information. See Prynne's Case, Modern Reports, p.

5.*

Thus informations, in the manner I stated them before, slept, after the repeal of the act (1 Hen. 8, c. 6,) to the 5 Car. 1. I suppose the case was thus: [See the Case, vol. 3, p. 293.]

He says

Hollis, Elliot, and some others, had been very troublesome in the House of Commons. The clamour being against the severity of the Star Chamber, a lawyer finding these precedents of informations in Henry 7th's reign, mentioned since in Mr. Bellamy's Report, prosecution was formed by way of information in the King's-bench. This was the first link, and a pretty long one, from Henry 7 to Charles 1. After this, as sir Francis Winnington observes, they slept to king Charles 2. "After which (says he) they were sometimes made use of, but very rarely neither.” moreover, he remembers very well, lord chief justice Hale often said, “That if ever informations came into dispute, they could not stand, but must necessarily fall to the ground." He says moreover, "informations at first were never questioned, because they were so very rare, but of late times they have been more frequent than ever." Sir William Williams replied in a very weak manner; Dolben and Holt were judges, yet none touched upon informations, as stated before. I conclude, that informations merely at the king's suit, for matters concerning which a grand jury may enquire, are directly contrary to the scope of Magna Charta, and all our fundamental laws of liberty.

I observe, my lord, that Magna Charta, and all those laws of liberty were confirmed, 12 Will. 3, c. 3, which makes them laws, de novo, as they were before, in the Petition of Right; and that no prescription can deprive us of the benefit of them, even though an act of parliament could be produced before that confirmation.

Thus, my lord, I have traced informations to their spring-head, and a very dirty, muddy spring it is; sir Francis Winnington has informed us, how they swarmed after the Revolution. Since I came to act a public part as a writer, indictments for libels have entirely ceased. I can remember none after one against

The Report is in 5 Mod. 459. See also, Holt, 362. See also Rex v. Abraham, Comb. 141, 1 Shower, 46. Rex v, Berchet, 1 Shower 106.

myself, nineteen years ago; so that by excises | him. He did agree that a justice of peace has and informations the dominions of grand juries authority to bind over to the sessions; but this are so narrowed, that they bear the same pro-was the first time that he ever heard that they portion as Portugal does to Spain; one slip of had authority to bind over to this court. And land is Britannia's jointure. My lord chief to shew that they could not have such an auchief justice Holt said, informations were com-thority, he appealed to the statute of 18 Edw, mon law, that is, the custom of your court is common law. If that sort of common law can prescribe to Magna Charta, and all our statutes of liberty; if the suggestion of the plaintiff against the defendant is absolute proof, my lord, I will go to Constantinople, and kiss the grand seignior's patent for a bow-string.

3; 37 Edw. 3, 18; 49 Edw. 3; and 1 & 2 Phil. & Ma. He took notice farther, that be bad entered into this recognizance so long ago as Mich. term last; and no information has been filed against him, nor has he had one single charge during all this time. The Court said that they believed it was usual for the secretaries of state not to sign these warrants themselves. To the second objection they could not enquire into it upon this motion; because the notice is, that the Court will be moved to discharge the recognizance, for errors ap

In the case of Kendal and Roe,* the same lord chief justice said, the secretary of state's power to commit was common law. I have heard it likewise said, that the practice of 45 years is above Magna Charta, and an hundred acts of parliament. I am confident your lord-pearing upon the face of it. To the third they ship abhors this doctrine. Common law, at this rate, is more tyrannical than ali our kings since William the Conqueror breathed his last. My lord, I have felt in my own person the power of informations. I was bound over to answer to one, and to good behaviour six years in the last reign, and five in this. I am told, the scheme is to keep me under these circumstances during this reign. I hope this day, from the candour and justice of your lordship, better things; that you will lift up Britaunia's drooping head, and tell her, Magna Charta shall live.

The preceding article I take to relate to the following Case, which is extracted from Barnardiston's Reports, vol. 2, pp. 293, 346.

"THE KING AND DR. EARBERY.

"Trin. Term, 6 G. 2, 1733.

said, these recognizances are very frequent in this court; and therefore they should certainly not order the present one to be taken off the file upon motion. If the recognizance is illegal, the defendant has his remedy another way. To the last objection, they did agree that if there had been a year passed from the time that this recognizance was given, and no prosecution against the defendant, he would have been intitled to be discharged. But till then, by the rules of the court, he cannot; accordingly the motion was refused."

"Mich. 7 Geo. 2, 1733.

nizance, by which the defendant was bound to "Mr. Josling moved, that a certain recogappear in this court, might be taken off the file; that so much of a rule of this court, as related to the defendant's appearing to this recognizance, might be discharged; that the defen"The defendant had given notice to the At- dant's papers, seized by virtue of a warrant torney General, that he should move the Court, from one of the secretaries of state, might be that his recognizance should be taken off the restored to him; and that a satisfaction might file and discharged, for certain errors appearing be awarded to him for the imprisonment be upon the face of it. He said he had been taken suffered under this warrant. He took notice up by a warrant from one of the secretaries of that some time before the beginning of last state, signed De la Faye; and he conceived Michaelmas term a warrant was issued forth that this warrant ought to have been signed in the name of the duke of Newcastle, one of with the name of the secretary of state himself, the secretaries of state; which was directed to and not with the name of one who was but an two of the king's messengers, requiring them, officer under him. When he was brought be- taking a constable to their assistance, to make fore the secretary of state upon this warrant, diligent search in the house of the defendant, the secretary of state committed bim; and the author of a treasonable paper, intitled ‹ The since a private justice of peace has taken Royal Oak Journal,' for all papers of what upon himself to bail bim, requiring him to enter kind soever, in his custody, and to bring the into this recognizance. No man, he submitted said defendant with the said papers before him. it, has authority to bail another, unless he is The messengers, without taking a constable to equal to the person committing. A justice of their assistance, entered into the defendant's peace is an officer inferior to a secretary of house, seized his papers, and brought them, state; and therefore he conceived that this re-together with the defendant, before Mr. De la cognizance must be illegal. He observed farther, that the terms of this recognizance are, that he shall keep the peace; and likewise that be shall appear in the court of King's-bench, to answer such matters as shall be objected against

See vol. 12, p. 1299.

Faye, who was the duke of Newcastle's secretary, and a justice of peace. No one was examined by Mr. De la Faye, to prove the defendant to be the author of this paper; nor did the defendant confess it. However, Mr. De la Faye told the defendant he must commit him, if he did not enter into a recognizance in the

sum of 100l. with two sufficient bail, conditioned for his appearance in the court of King'sbench the first day of last Michaelmas term, and not depart the court without license. To avoid being committed, the defendant with two sufficient bail entered into such recognizance; and the recognizance was sigued Ch. De la Faye.' The defendant appeared in the court of King's-bench on the first and last day of last Michaelmas term, and on the first and last day of the three following terms; but on the last day of Trinity term last, as soon as he had moved to have his appearance recorded, he prayed to be discharged. Upon this the Attorney-General exhibited two informations against him in open court, and moved that he might be charged with them. Mr. Masterman accordingly demanded of the defendant, whether he appeared to them. The defendant did not by any open act either assent or dissent to the question demanded of him; but insisted, that the recognizance by which he was bound over to this court, was illegal, and that he ought to be discharged from it. The Court told him that they could not discharge his recognizance. Upon that he went out of court, and the officer recorded his appearance to the informations. This Mr. Josling said was the state of the fact; and upon this state of it he apprehended that his motion was regular. He said he should not contend but it has been resolved, that a secretary of state's warrant to seize a person suspected of treasonable practices, was legal. But this resolution was but a late one, founded only upon precedents, and not one ancient resolution in the books to justify it. However it never was yet resolved, that a secretary of state could grant a warrant to seize a person's papers, and it manifestly is against the rights and liberties of the subject. As the warrant itself was illegal, so was the execution of it likewise. For it was done without the assistance of a constable, and the defendant not brought before the secretary of state himself, as the warrant directed, but a secretary under him. He then objected to the recognizance; he said he should not contend but there were precedents to justify a justice of peace in binding a man over to this court: but there was not one resolution in the books ancient or modern to justify such a practice. A justice of peace has a jurisdiction which is confined within the bounds of his county. And it would be a matter very inconvenient to the subject, if it should once be settled for law, that a justice of peace in Cumberland might bind a man over to this court sitting at Westminster. The mauner of taking the present recognizance was illegal too, in as much as there was the oath of no one, nor the confession of the party, at the time it was required of him. The form of it is likewise bad; for the defendant is bound over to appear at the court of King's-bench at Westminster; whereas the stile of this court is coram rege ubicunque;' it is not inserted in the recognizance for what cause he is to appear; the recognizance is signed too, Ch. de VOL, XX.

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la Faye; so that the Christian name of de la Faye is imperfectly set out; and it no where appears in the recognizance, that he was a justice of peace. Mr. Josling then spoke to the appearance of the defendant; and submitted in the first place, that the defendant in fact did not appear to these informations; and in the next place that he legally could not. He did agree that when the question was asked the defendant, whether he appeared, he did not in words directly refuse it; but be contended that the recognizance by which he was brought into court was illegal; which was the same thing as if he had in words directly contended that he was not obliged to appear. He submitted it therefore, that when the officer of the court demands of the party whether he appears, the party insists that he is not bound to appear; the Court tells him that he is bound to appear, and if he does not his recognizance will be forfeited; the party upon that goes out of court, that may as well be construed a departure without license, as an appearance; for which reason with regard to the fact he submitted it, the officer did wrong in recording that the defendant did appear to these informations. But supposing the fact to be that he did submit to appear; yet as the recognizance, which is in the nature of a process, to bring the party in to appear, was illegal, for the reasons he had before given, he conceived that the appearance could not be legal neither; and for authorities to support the several parts of his argument he cited Godb. 118, 147. 39 H. 6, 27. Archbishop of Canterbury's case, 4 Jac. 2. Sid. S2. Lut. 951. 11 H. 4, 7. Lamb. 89. Cr. 3, 646.

"The Chief Justice said that in the case of Kendal and Roe, it was settled upon solemn debate, that a secretary of state might issue out his warrant to apprehend the person of any man on suspicion of treasonable practices; and therefore did not think that that part of the present warrant would have been disputed at this day. As to the other part of it, with regard to seizing the defendant's papers, he would not give an opinion, whether it was legal, or not. This Court could not make a rule upon the messenger, that did seize them, to restore them ; and therefore that question was not properly before the Court for their determination. There was no occasion to determine neither, whether in general justices of peace have authority to bind over to this court. The person that did this in the present case, was a justice of peace for the county of Middlesex, and undoubtedly he might bind over to this court; this court having a jurisdiction of Oyer and Terminer for that county. However he had before him several precedents of justices of peace of other counties binding over to this court likewise. He had likewise before him several precedents of recognizances taken by judges of this court and justices of peace, wherein the stile of their authority was not inserted. He had seen several too, which are only in this general form ad respondendum, &c. Aud as to the other ex

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ceptions, with regard to the form of this recognizance, if there was any weight in them, the | defendant might have taken advantage of them, if a Scire Facias had been brought upon it. But what the defendant has done, has in judgment of law amounted to an appearance; and as that is so, all defects in the recognizance are thereby cured; for this purpose the chief justice mentioned the case of Widrington and Charlton, Trin. 11 Anne. That was an appeal of murder; the defendant did not appear till the Exigent; and when he did appear, his appearance was entered in the most cautious manner that could be, for it was in these words, Et prædictus defendens, salvis sibi omnibus 'advantagiis et exceptionibus tam ad breve originale quam ad processum, venit;' and thereupon for faults in the Exigent he demurred. Lord Macclesfield, Mr. Justice Eyres, and Mr. Justice Powis held, that all defects in process were cured by the party's appearance. Mr. Justice Powel indeed was of another opinion, as this was a Writ of Appeal; but agreed such defect would have been cured by appearance in every other action.

"The rest of the Court agreed with the Chief Justice in the present case; accordingly the motion was disallowed of."

See, also, another report of the same case in W. Kelyng, p. 161. In 8 Mod. p. 177, Fortesc. 37, are two reports of the King v. Earbery, which I suppose relate to this same person, though the points are not the same. Fortescue says, "Earbery was a worthy honest clergyman, and a good diviue, but was drawn in by some of his party to write a pamphlet, in which the ministry thought there were some scandalous reflections upon the government."

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As to the proceeding for an attachment against Almon, in respect of the publication of the Letter concerning Libels, Warrants, Seizure of Papers, &c.' see vol. 19, p. 1082, and lord chief justice Wilmot's Notes of Opinions and Judgments as there cited.

Concerning the non-examination of Miller, p. 835, see what Mr. Dunning said in the House of Commons, reported 16 New Parl. Hist. p. 1279.

Of the conversation which passed between Mr. Mackworth and lord Mansfield, p. 838, see Mr. Mackworth's account, 16 New Parl. Hist. pp. 1149. 1189.

Mr. Burke, in the debate upon a motion of the late lord Mulgrave, respecting the Information er officio, animadverted upon this case of Almon, see 16 New Parl. Hist. pp. 1152, 1153. 1192. See, also, the Reply of the Attorney-General De Grey, pp. 1155. 1194, of the same volume.

1.

38, Mr. Serjeant Hill had written in his copy To the words "they had affidavits,' p. 850, of Burrow the following Note:

"The facts in the affidavits ought to have been proved at the Trial: as they were not, nor any reason given why they were not, they could not by the known course of the court, nor ought in reason to have any weight, on a motion for a new trial; therefore there must be some mistake in this report; perhaps they might be read in extenuation of the punishment, but certainly could not be for a new trial; unless as above intimated, the affidavits had gone further, and given some good reason why the facts in the affidavits were not proved, such as sudden illness in defendant's witnesses, or non-attendance, though served with subpœnas, for sickness of the witnesses, if not sudden, would not be sufficient, but the defendants should have moved to put off the trial.” See, also, supr. pp. 844, 845.

554. The Trial of JOHN MILLER, Printer, before Lord Mansfield, and a Special Jury of Citizens of London, at Guildhall, for re-printing Junius's Letter to the King, in the London Evening Post, of the 19th of December, 1769: 10 GEORGE III. A. D. 1770. [Taken in Short-hand.*]

SPECIAL JURY.†

Samuel Athawes, of Martin's-lane.
Henry Voysey, Clement's-lane.
Joseph Lancaster, Green Lettice-lane.
William Gill, Abchurch-lane.

John Whitmore, Lawrence Poultney-lane.
Joshua Redshaw, St. Peter le Poor.
William Devisme, Bartholomew-lane.

Talesmen.

William Cave, of Farringdon Without.
William Washer, Bishopsgate Within.
George More, Farringdon.
Joshua Woodward, Bell-yard,

street.

Richard Ayres, Bishopsgate-street.

July 18, 1770.

THE case was opened by Mr. Walker.— The record stated, that the defendant, John Miller, did unlawfully print and publish, or cause to be printed and published, a certain seditious paper, entitled, The London Evening Post, Saturday, December 16th, to Tuesday,

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in reading over the paper itself, and in consideration of the proofs that are to be laid before you, I should have thought it a case so plain, and in so ordinary a course of justice, that it would absolutely be impossible to have mistaken, either the application of the proofs of the charges that are laid, or the conclusion to be made from them. I have not of myself been able to imagine, nor have I learnt from the conversation of any one man, that there is a serious man of the profession in the kingdom, who has the smallest doubt whether this ought to be deemed a libel or not: my memory deGracechurch-serts me exceedingly, if the learned gentlemen who spoke of this subject before, did any time venture to say, in so many plain words, that the contents of that paper were legal and innocent. I am mistaken if they did. seems to me impossible that such an idea member it right, from the general and loose can be formed; but instead of it, if I I rediscourse of them, concerning the liberty of ject, concerning the right of individuals to the press, it was a large and undefined sub. speak, to write, to publish with freedom, their own free thoughts, upon all manner of subjects; these topics were pretty largely, but the same time pretty generally handled. Now, it does not appear to me they were or could, in the nature of it, be applied to the present case. For I neither do, nor ever will, attempt to lay before a jury, a cause, in which I was under the necessity of stating a single principle that went to intrench, in the smallest degree, upon the avowed and acknowledged liberty of the subjects of this country, even with regard to the press. The complaint I have to lay before you, is, that that liberty has been so abused, so turned to licentiousness, in the manner in which it has been exercised upon the present occasion, that under the notion of arrogating liberty to one man, that is, the writer, printer, and publisher of this paper, they do, in effect and consequence, annihilate and destroy the liberty of all men, more or less. Undoubtedly the man that has indulged the liberty of robbing upon the highway, has a very considerable portion of it allotted to him. But where is the liberty of the man that is robbed? Where is the liberty of the man that is injured? Liberty consists in a fair and equal, public and general enjoyment of every man's person, fortune, and reputation, under the protection of the law; and the moment the law is silent or inattentive to protect any man's reputation whatsoever, his reputation is taken away from

December 19th, in which was contained a certain libel, reflecting upon the King, the administration of government, his principal officers of state, and the members of the hon. House of Commons, in these words, [The paper read.] The defendant pleaded Not Guilty.

Sol. General (Thurlow). Please your lordship, and you gentlemen of the jury, I am likewise of counsel for the crown in this prosecution, which is brought by the Attorney General against John Miller. I have very seldom found myself more puzzled how to state a question to a court, and in what manner to adapt it to a court, than I am upon the present occasion. Because

Published in the London Museum (of which Miller was the publisher) for October

1770.

Owing to a neglect of the summoning officer, only seven of the Special Jury attended, upon which Mr. Beardmore, the defendant's attorney, complained to the Court of the summonses for the Special Jury not being issued in proper time, and that to his certain knowledge, no summonses were delivered the day before at twelve o'clock. The Court allowed the complaint to be just, but took no further notice of it. Five Talesmen were then drawn. Orig. Edit.

See it, p. 805, of this volume.

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