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The reason appears very plain to me why a mon courts, according to the old law. This is process was so vehemently insisted upon by no proof that informations were by that act inour ancestors : it was because it issued from troduced into your bench, nor any new forms courts of justice upon evidence, independently allowed. loformativos, as sir Francis Winof ministers of state,
nington observes in Pryone's case, 2 Will. & But, my lord, the defendant finds no process Mary, were introduced in Henry 7th's reign. now till he is summoned by the Court to plead, This gentleman undertook to shake informaif that can be called a summons. He is obliged tions by a very learned argument, to which I to answer by being demanded to appear before think he had not very learned answers. any summons is sent out: how differeut is this
Permit me then, my lord, to make a few obfrom the nature of a process ? It is only a sum- servations upon that reign. mons to plead to the suggestion of an attorney- We have got the evidences of sir Edward general. The charge does not come from the Coke and the lord Bacon-We bave got the court, and from evidence, but from a charge Courts of Assize which banged Empson and foreign to the court, without any evidence at Dudley, that no reign was so tyrannical since all.
the Conquest to the subject: there were two A process is always attended with a certain acts then passed, that finished our slavery; charge expressed in the body thereof; an at- the one was the act of Star Chamber; the tachment runs thus, • Attachiatur pro con- olher was to empower justices of the peace, * temptu.' I have seen one thus, • Attachiatur acting only by commission from the crown, to
pro contemptu,' commonly called a forgery: inquire without grand juries; a third act was but a summons to attend an attorney-general's passed to secure the contriver's brains from besuggestion, as a bill, is setting aside the whole ing knocked out by the people. intent and scope bi those acts our wise fore- As to the first, there does not, in the preamfathers made, to fence us from the power of ble, appear the least reason to conclude, that the crown,
the king could proceed to informations by bis But as we see, my lord, these practices (so attorney, without a grand jury.* The words opposite to Magna Charta, and the explanatory are, statutes) rivetted by custom in this court, 1 “ By unlawful maintenance, giving of sball beg leave to say something to that part; liveries, signs and tokens, and retainders by inonly I shall previously premise, that the fre- dentures, promises, oaths, writings, or otherquent statutes, all to the same purpose, crowded wise; embraceries of his subjects, untrue de together in Ed. 3d's reign, were owing to the meanings of sheriffs in making pauels, and encroachments of the privy council, wbo were olher untrue returns, by taking of money, by continually breaking in upon those sacred laws, injuries, by great riots, and unlawful assemby bringing subjects before them, and playing blies, &c. and for the punishing of these incona thousand tyrannical tricks, in the wildness of veniences little or nothing may be found by entheir power. The wakeful Commons drove quiry,” &c. The court of Star-chamber was the sea back, and mended the breaches made erected upon a supposed defect io graod juries, upon us by those inundations; whereas we to find out crimes by bill anı evidence. were all safe in the king's courts, which moved Surely if the king could then proceed by inwith gravity, by legal precedents in the steps formation, it must have had a place in the preof law.
amble. Your lordship may see through the From whence did informations insinuate into mask. The parliament could have no notice
of previous informations in the King's-bench, The first formal act of our constitution, when they passed this act. which favoured the proceedings of the council
, I desire to observe to your lordship, that inwas made 31 Hen. 6, quoted by sir Edward formations in the King's-bench differ widely Coke, title Star Chamber.
from the Star-chamber ones. The judges who This does indeed give a power to the coun- sat there were the greatest officers in the kingcil, very inconsistent with these acts. See the dom, and the churcbmen of the first rank. Roll, 31 H. 6, c. 2. But if we consider this When a bill was brought by the Attorney, it was passed in very troublesome tinies, after the was read, and the persons were summoped in civil wars, which were just skinned over, and to answer ; nor was the bill fonud before a full Hen. 6, was in effect deposed, and the duke of examination was taken. What I have said beYork, under the title of Protector, governed fore, my lord, shews that in your bench the every thing, no great stress can be laid upon defendant, if he is upon recognizance, answers this act; and, as it stands, it was only tem- instanter, nor does your bench take any porary, to continue for seren years.
cognizance of the information before the de. It seems calculated to serve the ends of the fendant comes to his trial. duke, to bring his enemies into bis power ; for I shall proceed now to the second act, worse it is aimed chiefly at the nobility and great than the first: hear my lord chief justice peers of the realm : but if we view an excep-Coke;+ " Against this antient and fundamental tion towards the latter end, omitted by sir Ed. ward Coke, we shall find, that though the 3 Hen. 7, c. 1. council had a power to call them by sugges- + Coke % Inst. p. 51. 11 Hen, 7, c. 8. tion, they were remitted to be tried in the com- Repealed 1 Heu, 8, c. 6.
Jaw (Magna Charta, cap. 29) and in the face the court of King's-bench, being a court of thereof, I find an act of parliament made, that Oyer and Terminer to Middlesex, it was inas well justices of assize as justices of the cluded in the act. Sir Francis Winnington peace (without any finding or presentment by dates informations no higher, nor is there the ibe verdict of twelve men) upon bare iuforma- least shadow of proof they were ever heard of tion for the king before them made, should before. have full power and authority, by their discre- Thus, my lord, we are sufficiently clear as tion, to hear and determine all offences and to the origin of your informations. I shall contempts committed or done, by any person next pursue them to their present growth. or persons, against the form, ordinance, and ef
Sir Francis Winnington
observes, that in fect of any statute made, and not repealed, &c. Rastal's and Coke's Entries, there are no inforBy colour of wbich act, shaking ihis funda- mations, but only upun penal statutes; and in mental law, it is not credible what horrid op-Rastal, says he, there is hardly one informapressions and exactions, to the undoing infinite tion. See Prynne's Case, Modern Reports, p. numbers of people, were committed by sir 5.* Richard Empson, kot, and Edmund Dudley, Thus informations, in the manner ) stated being justices of peace throughout all Eug. them before, slept, after the repeal of the act laod; and upon this unjust and injurious act (1 Hen. 8, c. 6,) to the 5 Car. 1. I suppose the (as commonly in like cases it falleth out) a case was thus : [See the Case, vol. 3, p. 293.] new office was erected, and they made them- Hollis, Elliot, and some others, bad been selves inasters of the king's forfeitures.” very troublesome in the House of Commons. Let us hear the lord Verulam.
The clamour being against the severity of the “ They did not insist upon justice ; indict. Star Chamber, a lawyer finding these precements were become burtbedsome and unneces- dents of informations in Henry 7th's reign, sary records. They sent forth their warrants mentioned since in Mr. Bellamy's Report, a to take men, and without crowding Westmin- prosecution was formed by way of information ster- Hall, would convene them to their own in the King's-bench. This was the first link, houses, and without juries determine upon and a pretty long one, from Henry 7 to Charles their estates and fortunes."
1. After this, as sir Francis Winnington obIt is not doubted but tbat they extended their serves, they slept to king Charles 2. " After infant jurisdictiou beyond the limits of the act, which (says he) they were sometimes made for, as the lord Verulam farther says, “ They use of, but very rarely neither.” He says used to charge the subjects' lands with false moreover, he remembers very well, lord chief tenures in capite, by finding false offices, re- justice Hale often said, “That if ever inforfusing to admit men to traverse those false mations came into dispute, they could not offices by law. If any were outlawed, the law stand, but must necessarily fall to ihe ground." was strained to its rigour, to amount to the for- He says moreover, “ informations at årst were feiture of goods and lands."
never questioned, because they were so very After this terrible preamble, in wbicb we find rare, but of late times they have been more informations solemnly coudemned by the two frequent than ever.” Sir William Williams regreatest lawyers in England, I am now come plied in a very weak manner ; Dolben and to the origin of them in your beach.
Holt were judges, yet none touched upon inIn the report of the committee of the House formations, as stated before. I conclude, that of Commons appointed to view the Cottopian informations merely at the king's suit, for library, and other records in tbis kingdom, matters concerning which a grand jury may Jan. 1732, I find the report of the coroner in enquire, are directly contrary to the scope of the Crown-office, William Bellamy, whose Magna Charta, and all our fundamental laws interest it was to stand tooth and nail by infor- of liberty. mations, they heing the source of the greatest I observe, my lord, tbat Magna Charta, and · part of his wealth: he says, the early records all those laws of liberty were confirmed, 12 Will. begin 1 Ed. 3. If so, we may surely expect 3, c. 3, which makes them laws, de novo, as to find the antiquity of informations, because they were before, in the Petition of Right; and he says the bag rolls contain an abstract of that no prescription can deprive us of the beevery prosecuti n. by indictment, appeal, infor- nefit of them, even though an act of parliament mation, &c. He says, with regard to informa. could be produced before that confirmation. tions, they were very frequent in Henry 7th, Thus, my lord, I have traced informations to and Heory 8th's time, and long before. their spriog-head, and a very dirty, muddy
As to their being in Henry 7th's time, I be spring it is; sir Francis Winnington has inlieve bim, but that there were any before I can. formed us, how they swarmed after the Revonot believe, because I am very well assured of lution. Since I came to act a public part as a the contrary; it looks moreover very suspicious, writer, indictments for libels have entirely ceasthat the gentleman should begin at the middle ed. I can remember wone after one against of his antiquity. I can easily account how informations came * The Report is in 5 Mod. 459,
See also, into the King's-bench in Henry 7th's reign. Holt, 362." See also Rex o. Abraham, Comb. The act above mentioned gives power to courts 141, 1 Shower, 46. Rex v, Bercbet, 1 Shower of assize, to enquire without grand juries; 106.
myself, nineteen years ago; so that by excises him. He did agree that a justice of peace bas aud informations the dominions of grand jaries 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. Anit 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 3; 37 Edw. 3, 18; 49 Edw. 3; and 1 & 2 common law. If that sort of common law can Phil. & Ma. He took notice farther, that he prescribe to Magna Charta, and all our statutes bad entered into this recognizance so long ago of liberty ; it ibe suggestion of the plaintiff as Mich. term last; and no information bas against ihe defendant is absolute proof, my been filed against him, nor has be bad ove sinlord, I will go to Constantinople, and kiss the gle charge during all this time. The Court grand stignior's patent for a bow-string. said that they believed it was usual for the
Jo the case of Kendal and Roe,* the same secretaries of state not to sign these warrants lord chief justice said, the secretary of state's themselves. To the second objection they power to commit was common law. I have coull not enquire into it upon this motion; beheard it likewise sajd, that the practice of 45 cause the notice is, that the Court will be moved years is above Magna Charta, and an hundred to discharge the recognizance, for errors apacts of parliament. I am confident your lord pearing upon the face of it. To the third they ship abhors this doctrine. Common law, at said, these recognizances are very frequent in this rate, is more tyrannical than all our kings this court; and therefore they should certainly since William the Conqueror breathed his last. not order the present one to be taken off the
My lord, I have felt in my own person the file upon motion. If the recognizance is illepower of informations. I was bound over to gal, the defendant has bis remedy another way, answer to one, and to good behaviour six years To the last objection, they did agree that if in the last reign, and five in this. I am told, there bad been a year passed from the time the scheme is to keep me under these circum- that this recognizance was given, and no prostances during this reigo. I hope tbis day, secution against the defendant, be would have from the candour and justice of your lordship, been intitled to be discharged. But till then, better things; that you will lift up Britannia's by the rules of the court, he cannot; accordo drooping head, and tell her, Magna Charta ingly the motion was refused.” shall live.
“ Mich. 7 Geo. 2, 1733. The preceding article I take to relate to the following Case, which is extracted from Bar- nizance, by which the defendant was bound to
“ Mr. Josling moved, that a certain recognardiston's Reports, vol. 2, pp. 293, 346.
appear in this court, might be taken off the file; “Túe King and Dr. Earbery. that so much of a rule of this court, as related “ Trin. Term, 6 G. 2, 1733.
to the defendant's appearing to this recogni.
zance, might be discharged; that the defen“ The defendant had given notice to the At- dant's papers, seized by virtue of a warrant torney Geveral, that he should more 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 he 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 bimself, the secretaries of state; which was directed 10 and pot with the name of one who was but an two of the king's messengers, requiring them, officer under bim. 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 wbat 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 far- Faye, wbe was the duke of Newcastle's secrether, that the terms of this recognizance are, tary, and a justice of peace. No one was that he shall keep the peace; and likewise that examined by Mr. De la Faye, to prove the de· he shall appear in the court of King's-bench, to fendant to be the autbor of ibis paper ; nor did · answersuch matters as shall be objected against the defendant confess it. However, Mr. De la
Faye told the defendant he must commit him, See vol. 12, P. 1299.
it he did not enter into a recoguizance in who.
sum of 1001. with two sufficient bail, condi- į la Faye ; so that the Christian name of de la tioned for his appearance in the court of King's Faye is imperfectly set out; and it no where beneh the first day of last Michaelmas term, appears in the recognizance, that he was a and not depart the court without license. To justice of peace. Mr. Josling then spoke to avoid being committed, the defendant with two the appearance of the defendant; and salsufficient bail entered into such recognizance; mitted in the first place, that the defendant in and the recognizance was signed Ch. De la fact did not appear to these informations; and Faye.' The defendant appeared in the court in the next place that he legally conld not. He of King's-bench on the first and last day of last did agree that wben the question was asked the Michaelnias term, and on the first and last day defendant, whether he appeared, he did not in of the three following terms; but on the last words directly refuse it; but he contended that day of Trinity term last, as soon as he had the recognizance by which he was brought into moved to bave bis' appearance recordedi, be court was illegal; which was the same thing as prayed to be discharged. Upon this the Attor- if he had in words directly contended that he was ney-General exbibited two informations against not obliged to appear. He submitted it therefore, him in open court, and moved that he might that when the officer of the court demands of be charged with them. Mr. Masterman uc- the party whether he appears, the party insists cordingly demanded of the defendant, whether that be is not bound in appear; the Court he appeared to them. The defendant dill not tells him that he is bound to appear, and if he by any open act either assent or dissent to the does not bis recognizance will be forfeited; question demanded of him; but insisted, that the party upon that goes out of court, that may the recognizance by which he was bound over as well be construed a departure without lito this court, was illegal, and that be ought to cense, as an appearance ; for which reason be discharged from it. The Court told bim with regard to the fact he submitted it, the that they could not discharge his recognizance officer did wrong in recording that the delenUpon that he went out of court, and the officer tant did appear to these informations.
But recorded his appearance to the informations supposing the fact to be that he did submit 10 This Mr. Josling said was ibe state of the fact; appear ; yet as the recognizance, which is and upon this state of it be apprehended that in the nature of a process, to bring the party in bis motion was regular. He said he should to appear, was illegal, for the reasons be had not contend but it has been resolved, that a se. before given, he conceived that the appearance cretary of state's warrant to seize a person could not be legal neither; and for authorities suspected of treasonable practices, was legal. to support the several parts of bis argument But this resolution was but a late one, founded be cited Godb. 118, 147. 39 H. 6, 27. Archonly upon precedents, and not one ancient re- bishop of Canterbury's case, 4 Jac. 2. Sid. 32. solution in ihe books 10 justify it. However it Lut. 951. 11 H. 4, 7. Lamb. 89. Cr. S, 646. never was yet resolved, that a secretary of state
“ The Chief Justice said ibat in the case of could grant a warrant to seize a person's papers, Kendal and Rve, it was settled oppo solemn and it manifestly is against the rights and li- debate, that a secretary of state might issue berties of the subject. As the warrant itself put bis warrant to apprebend the person of was illegal, so was the execution of it likewise. any man on suspicion of treasonable practices; For it was done without the assistance of a and therefore did not think that that part of the constable, and the defendant not brought be present warrant would have been dispated at fore the secretary of state bimself, as tbe war- ihis day. As to the other part of it, with regard rant directed, but a secretary under him. He to seizing the defendant's papers, he would not then objected to the recognizance; he said he give an opinion, whether it was legal, or not. sbould not contend but ibere were precedents This Court could not make a rule upon the to justify a justice of peace in binding a man messenger, that did seize theni, to restore over to this court : but there was not one them; and therefore that question was not resolution in the books ancient or modern to properly before the Court for their determinajustify such a practice. A justice of peace tion. There was no occasion to determine neihas a jurisdiction which is contined within the ther, whether in general justices of peace bave bounds of bis county. And it would be a matter authority to bind over 10 iliis court. The pervery inconvenient to the subject, if it should son that did this in the present case, was a jusunce be settled for law, that a justice of peace tice of peace for the county of Middlesex, in Cumberland might biod a man over to this and undoubtedly he might bind over court sitting at Westminster. The mauner of this court; ibis court having a jurisdiction of taking the present recognizance was illegal | Oyer and Terminer for that county. Howtoo, in as much as there was the oath of no ever he had before bim several precedents one, por the confession of the party, at the of justices of peace of other counties biudtime it was required of him. The form of it ing over to this court likewise. He had is likewise bad; for the defendant is bound likewise before bim several precedents of reover to appear at the court of King's.bench at cognizances taken by judges of this court and Westminster; whereas the stile of this court justices of peace, wherein the stile of their auis coram rege ubicunque;' it is not inserted lihority was not inserted. He had seen severa! in the recognizance for what cause he is to ap- too, which are only in this general form ad pear; the recognizance is signed too, Ch. de respondendum, &c. Aud as to the other ex. VOL, XX.
ceptions, with regard to the form of this recog. As to the proceeding for an attachment nizance, if there was any weight in then, the against Almon, in respect of the publication of defendant might have taken advantage of them, the · Letter concerning Libels, Warrants, Seiif a Scire Facias had been brought upon it. zure of Papers, &c.' see vol. 19, p. 1082, and But wbat the defendant has done, has in lord chief justice Wilmot's Notes of Opinions judgment of law amounted to an appearance ; and Judgments as there cited. and as that is so, all defects in the recog- Concerning the non-examination of Miller, nizance are thereby cured; for this purpose the p. 835, see what Mr. Dunning said in the chief justice mentioned the case of Widrington House of Commons, reported 16 New Parl. and Charlion, Trin. 11 Anne. That was an Hist. p. 1279. appeal of murder ; the defendant did not ap- Of the conversation which passed between pear till the Exigent; and when he did appear, Mr. Mackworth and lord Mansfield, p. 838, his appearance was entered in the most cautious see Mr. Mackworth's account, 16 New Parl. manner that could be, for it was in these words, Hist. pp. 1149. 1189. • Et prædictus defendens, salvis sibi omnibus Mr. Burke, in the debate upon a motion of • advantagiis et exceptionibus tam ad breve the late lord Mulgrave, respecting the lofor
originale quam ad processum, venit;' and mation er officio, animadverted upon this case thereupon for faults in the Exigent he demurred. of Almon, see 16 New Parl. Hist. pp. 1152, Lord Macclesfield, Mr. Justice Eyres, and Mr. 1153. 1192. See, also, ihe Reply of the AlJustice Powis held, that all defects in process torney-General De Grey, pp. 1155. 1194, of were cured by the party's appearance. Mr. the same volume. Justice Powel indeed was of another opinion, as this was a Writ of Appeal; but agreed such 1.38, Mr. Serjeant Hil bad written in his copy
To the words "they had affidavits," p. 850, defect would have been cured by appearance of Burrow the following Note: in every other action.
“ The rest of the Court agreed with the Chief " The facts in the affidavits ought to have Justice in the present case; accordingly the been proved at the Trial : as they were not, motion was disallowed of.”
por any reason given why they were not, they
could not by the knowo course of the court, See, also, another report of the same case nor ought in reason to have any weight, on a in W. Kelyng, p. 161. In 8 Mod. p. 177, motion for a new trial; therefore there must Fortesc. 37, are two reports of the King o be some mistake in this report; perhaps they Earbery, which I suppose relate to this same might be read in exteguation of the puuishperson, thougb the points are not the same. ment, but certainly could not be for a new Fortescue says,
Earbery was a worthy ho- trial; unless as above intimated, the affidavits nest clergyman, and a good divine, but was had gone further, and given some good reason drawn in by some of his party to write a why the facts in the affidavits were not proved, pamphlet, in which the ministry thought there such as sudden illuess in defendant's witnesses, were some scandalous reflections upon the go. or non-attendance, though served with subvernment."
pæpas, for sickness of the witnesses, if not In the preceding Report of Almon's Case sudden, would not be sufficient, but the defenare some incorrectnesses which I have not ven- dants should have moved to put off the trial.” tared to alter.
Sce, also, supr. pp. 844, 843.