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The reason appears very plain to me why a process was so vehemently insisted upon by our ancestors: it was because it issued from courts of justice upon evidence, independently of ministers of state.

mon courts, according to the old law. This is
no proof that informations were by that act in-
troduced into your bench, nor any new forms
allowed. Informations, as sir Francis Win-
nington observes in Prynne's case, 2 Will. &
Mary, were introduced in Henry 7th's reign.
This gentleman undertook to shake informa-
tions by a very learned argument, to which I
think he had not very learned answers.
Permit me then, my lord, to make a few ob-

But, my lord, the defendant finds no process
now till he is summoned by the Court to plead,
if that can be called a summons. He is obliged
to answer by being demanded to appear before
any summons is sent out: how different is this
from the nature of a process? It is only a sum-servations upon that reign.
mons to plead to the suggestion of an attorney-
general. The charge does not come from the
court, and from evidence, but from a charge
foreign to the court, without any evidence at
all.

A process is always attended with a certain charge expressed in the body thereof; an attachment runs thus, Attachiatur pro con'temptu.' I have seen one thus, Attachiatur pro contemptu,' commonly called a forgery: but a summons to attend an attorney-general's suggestion, as a bill, is setting aside the whole intent and scope of those acts our wise forefathers made, to fence us from the power of the crown.

But as we see, my lord, these practices (so opposite to Magna Charta, and the explanatory statutes) rivetted by custom in this court, 1 shall beg leave to say something to that part; only I shall previously premise, that the frequent statutes, all to the same purpose, crowded together in Ed. 3d's reign, were owing to the encroachments of the privy council, who were continually breaking in upon those sacred laws, by bringing subjects before them, and playing a thousand tyrannical tricks, in the wildness of their power. The wakeful Commons drove the sea back, and mended the breaches made upon us by those inundations: whereas we were all safe in the king's courts, which moved with gravity, by legal precedents in the steps of law.

From whence did informations insinuate into your bench?

The first formal act of our constitution, which favoured the proceedings of the council, was made 31 Hen. 6, quoted by sir Edward Coke, title Star Chamber.

This does indeed give a power to the council, very inconsistent with these acts. See the Roll, 31 H. 6, c. 2. But if we consider this was passed in very troublesome times, after the civil wars, which were just skinned over, and Hen. 6, was in effect deposed, and the duke of York, under the title of Protector, governed every thing, no great stress can be laid upon this act; and, as it stands, it was only temporary, to continue for seven years.

It seems calculated to serve the ends of the duke, to bring his enemies into his power; for it is aimed chiefly at the nobility and great peers of the realm: but if we view an exception towards the latter end, omitted by sir Edward Coke, we shall find, that though the council had a power to call them by suggestion, they were remitted to be tried in the com

We have got the evidences of sir Edward Coke and the lord Bacon-We have got the Courts of Assize which hanged Empson and Dudley, that no reign was so tyrannical since the Conquest to the subject: there were two acts then passed, that finished our slavery; the one was the act of Star Chamber; the other was to empower justices of the peace, acting only by commission from the crown, to inquire without grand juries; a third act was passed to secure the contriver's brains from being knocked out by the people.

As to the first, there does not, in the preamble, appear the least reason to conclude, that the king could proceed to informations by bis attorney, without a grand jury. The words

are,

"By unlawful maintenance, giving of liveries, signs and tokens, and retainders by indentures, promises, oaths, writings, or otherwise; embraceries of his subjects, untrue demeanings of sheriffs in making panels, and other untrue returns, by taking of money, by injuries, by great riots, and unlawful assemblies, &c. and for the punishing of these inconveniences little or nothing may be found by enquiry," &c. The court of Star-chamber was erected upon a supposed defect in grand juries, to find out crimes by bill and evidence.

Surely if the king could then proceed by information, it must have had a place in the preamble. Your lordship may see through the mask. The parliament could have no notice of previous informations in the King's-bench, when they passed this act.

I desire to observe to your lordship, that informations in the King's-bench differ widely from the Star-chamber ones. The judges who sat there were the greatest officers in the kingdom, and the churchmen of the first rank. When a bill was brought by the Attorney, it was read, and the persons were summoned in to answer; nor was the bill found before a full examination was taken. What I have said before, my lord, shews that in your bench the defendant, if he is upon recognizance, answers instanter, nor does your bench take any cognizance of the information before the defendant comes to his trial.

I shall proceed now to the second act, worse than the first: hear my lord chief justice Coke ;+" Against this antient and fundamental

3 Hen. 7, c. 1.

+ Coke 2 Inst. p. 51. 11 Hen. 7, c. 3. Repealed 1 Hen, 8, c. 6.

861]

Earbery's Case.

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 Eug land; 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."

the court of King's-bench, being a court of
Sir Francis Winnington
Oyer and Terminer to Middlesex, it was in-
cluded in the act.

least shadow of proof they were ever heard of
dates informations no higher, nor is there the
before.

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

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

5.*

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

Hollis, Elliot, and some others, had been very troublesome in the House of Commons. The clamour being against the severity of the dents of informations in Henry 7th's reign, Star Chamber, a lawyer finding these precementioned since in Mr. Bellamy's Report, a This was the first link, in the King's-bench. prosecution was formed by way of information and a pretty long one, from Henry 7 to Charles "After 1. After this, as sir Francis Winnington observes, they slept to king Charles 2. which (says he) they were sometimes made He says It is not doubted but that they extended their "They use of, but very rarely neither." infant jurisdiction beyond the limits of the act, moreover, he remembers very well, lord chief for, as the lord Verulam farther says, used to charge the subjects' lands with false tenures in capite, by finding false offices, re-justice Hale often said, "That if ever inforfusing 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 be lieve 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;

mations came into dispute, they could not
"informations at first were
He says moreover,
stand, but must necessarily fall to the ground."
never questioned, because they were so very
rare, but of late times they have been more
frequent than ever." Sir William Williams re-
plied in a very weak manner; Dolben and
Holt were judges, yet none touched upon in-
informations merely at the king's suit, for
formations, as stated before. I conclude, that
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 be-
nefit of them, even though an act of parliament
Thus, my lord, I have traced informations to
could be produced before that confirmation.
their spring-head, and a very dirty, muddy
spring it is; sir Francis Winnington has in-
formed us, how they swarmed after the Revo-
lution. Since I came to act a public part as a
ed. I can remember none after one against
writer, indictments for libels have entirely ceas-

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

him. He did agree that a justice of peace has authority to bind over to the sessions; but this was the first time that he ever heard that they had authority to bind over to this court. And to shew that they could not have such an au

myself, nineteen years ago; so that by excises and informations the dominions of grand juries are so narrowed, that they bear the same proportion as Portugal does to Spain; one slip of land is Britannia's jointure. My lord chief chief 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 he bad entered into this recognizance so long ago as Mich. term last; and no information bas 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 apsaid, 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."

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 all 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 Britannia's drooping head, and tell her, Magna Charta shall live.

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

"The defendant had given notice to the Attorney General, that he should move the Court, that his recognizance should be taken off the file and discharged, for certain errors appearing upon the face of it. He said he had been taken up by a warrant from one of the secretaries of state, signed De la Faye; and he conceived that this warrant ought to have been signed with the name of the secretary of state himself, and not with the name of one who was but an officer under him. When he was brought before the secretary of state upon this warrant, the secretary of state committed him; and since a private justice of peace has taken upon himself to bail him, requiring him to enter into this recognizance. No man, he submitted it, has authority to bail another, unless he is equal to the person committing. A justice of peace is an officer inferior to a secretary of state; and therefore he conceived that this recognizance must be illegal. He observed farther, that the terms of this recognizance are, that he shall keep the peace; and likewise that he shall appear in the court of King's-bench, to answer such matters as shall be objected against

↑ See vol. 12, p. 1299.

"Mich. 7 Geo. 2, 1733.

"Mr. Josling moved, that a certain recog nizance, by which the defendant was bound to appear 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 defendant's papers, seized by virtue of a warrant from one of the secretaries of state, might be restored to him; and that a satisfaction might be awarded to him for the imprisonment he suffered under this warrant. He took notice that some time before the beginning of last Michaelmas term a warrant was issued forth in the name of the duke of Newcastle, one of the secretaries of state; which was directed to two of the king's messengers, requiring them, taking a constable to their assistance, to make diligent search in the house of the defendant, the author of a treasonable paper, intitled The Royal Oak Journal,' for all papers of what kind soever, in his custody, and to bring the said defendant with the said papers before him. The messengers, without taking a constable to their assistance, entered into the defendant's house, seized his papers, and brought them, together with the defendant, before Mr. De la 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 de→ fendant 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

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 conld not. He did agree that when the question was asked the defendant, whether he appeared, he did not in words directly refuse it; but he 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 li cense, 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 10 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 be cited Godb. 118, 147. 39 H. 6, 27. Archbishop of Canterbury's case, 4 Jac. 2. Sid. 32. Lut. 951. 11 H. 4, 7. Lamb. 89. Cr. 3, 646.

sum of 100l. with two sufficient bail, conditioned for his appearance in the court of King'sbench the first day of lust 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 signed 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 be-present warrant would have been disputed at fore the secretary of state bimself, 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.

"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

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 severa! too, which are only in this general form ad respondendum, &c. Aud as to the other ex. 3 K

ceptions, with regard to the form of this recog nizance, 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.

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"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, 66 Earbery was a worthy honest clergyman, and a good divine, 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."

In the preceding Report of Almon's Case are some incorrectnesses which I have not ventured to alter.

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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.

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