« EdellinenJatka »
law (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 po higher, nor is there the ihe 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against the forın, ordinance, and ef Sir Francis Winninglou observes, ibat in fect of any statute made, and not repealed, &c. Rastal's and Coke's Entries, there are no inforBy colour of which act, shaking ihis funda- mations, but only upon pedal statutes; and in mental law, it is pot credible what horrid op- Rastal, says be, 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 Richard Empsou, kpt. 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, had been selves masters of the kiog's forfeitures." very troublesome in the House of Commons. Let us bear 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 burthensome and unneces dents of informations in Henry 7th's reign, sary records. They sent forth their warrants mentioned since in Mr. Bellamy's Report, to take men, and without crowding Westmio - prosecution was formed by way of information ster-Hall, would convene them to their own in the King's-bench. This was the first lok, 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 that they extended their serves, they slept to king Charles 2. infant jurisdiction 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 peither." used to charge the subjects' lands with false moreover, he remembers very well, lord cbief 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 ibe ground.” was strained to its rigour, to ansount to the for Не
says moreover, “ informations at first were feiture of goods and Jands."
never questioned, because they were su very After this terrible preamble, in which we find rare, but of late times they have been more informations solemnly condemned 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 bench.
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 Cottonian informations merely at the king's suit, for library, and other records in tbis kingdom, matters concerning which a grand jury may Jap. 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 being the source of the greatest I observe, my lord, that Magna Charta, and part of bis 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 prosecution by ivdictment, 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 Heory 7th, Thus, my lord, I have traced informations to and Henry 8th's time, and long before. their spring-head, and a very dirty, muddy
As to their being in Henry 7th's time, I be spring it is; sir Francis Wionington has inlieve him, but that there were any before I can formed us, bow 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 bave entirely ceasthat the gentleman should begin at the middle ed. Í 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-beoch in Henry 7th's reign. Holt, 362. See also Rex v. Abrabam, Comb. Tbe act above mentioned gives power to courts 141, 1 Shower, 46. Rex v, Berchet, 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 and informations the doininions 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. Aud 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 & ? common law. If that sort of common law can Phil. & Ma. He took notice farther, that be prescribe to Magna Charta, and all our statutes bad entered into this recognizance so long ago of liberty; if ihe suggestion of the plaintiff as Mich. term last; and no information has against the defendant is absolute proof, my been filed against him, nor has be had one siolord, I will go to Constantinople, and kiss the gle charge during all this time. The Court grand seignior's patent for a bow-string. said that they believed it was usual for the
In the case of Keodal 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 could not enquire into it upon this motion; be. heard it likewise said, that the practice of 45 cause the notice is, that the Court will be moved years is above Magna Charta, and an hundred 10 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 ali our kings this court; and therefore they should certainly since William the Conqueror breathed his last. not order the present one to be takeu 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 bope this day, secution against the defendant, he 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 Britaunia's by the rules of the court, he cannot; accorddrooping head, and tell her, Magoa 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 froin Bar- nizance, by which the defendant was bound to
“ Mr. Josling moved, that a certain recog. nardiston's Reports, vol. 2, pp. 293, 346.
appear in this court, might be taken off the file; « Tae 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 General, that he should move the Couit, from one of the secretaries of state, might be that his recognizance should be taken off the restored to bim; and that a satisfaction might file discharged, for certain errors appearing be awarded to bim for the imprisonment be upon the face of it. He said he bad 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; wbich was directed to and not with the pame 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
bimself to bail bim, requiring him to enter kind soever, in his custody, and to bring the into tbis 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, who 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 be shall appear in the court of King's-bench, to fendant to be the author of this paper ; nor did answer such matters as shall be objected against the defendant confess it. However, Dír. De la
Faye told the defendant he must commit him, See vol. 12, p. 1299,
if he did not enter into a recognizance in the
sum of 100l. with two sufficient bail, condi- , la Faye ; so that the Christian name of de la tioned for bis appearance io the court of King's Faye is imperfectly set out; and it no where bench 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 subsufficient bail entered into such recognizance; mitted in the first place, that the defendant in and the recognizance was sigued • Cb. De la fact did not appear io these informations; and Faye.' The defendant appeared in the court in the next place that he legally could not. He of King's-bench on the first and last day of last did agree that when the question was asked the Michaelmas 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 be contended that day of Trinity term last, as soon as he had the recognizance by which he was brought into moved to have his appearancé recorded, 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 agaiost not obliged to appear. He submitted it therefore, him jo open court, and moved that he might that when the officer of the court demands of be charged with them. Mr. Masterman ac the party whether he appears, the party insists cordingly demanded of the defendant, whether that he is not bound to appear; the Court he appeared to them. The defendant did 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 bim; 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 lie to this court, was illegal, and that he 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 defenUpon that he went out of court, and the officer Jant did appear to these, informations. But recorded his appearance to the informations. supposing the fact to be that be did submit 10 This Mr. Josling said was the state of the fact; appear; yet as the recognizance, which is and upon this state of it he apprehended that in the nature of a process, to bring the party in his motion was regular. He said he should to appear, was illegal, for the reasons he 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 he 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. 52. solution in the books to justify it. However it Lut. 951. 11 H1.4,7. Lamb. 89. Cr. 3, 646. never was yet resolved, that a secretary of state
« The Chief Justice said that in the case of could grant a warrant to seize a person's papers, Kendal and Roe, it was seltled upon solemn and it manifestly is against the rights and lis debate, that a secretary of state inight issue berties of the subject. As the warrant itself out bis warrant to apprehend 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 pot brought be present warrant would bave been disputed at fore the secretary of state bimself, as the war ibis 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 them, 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 jurisdictiou which is contined within the ther, whether in general justices of peace have bounds of his county. And it would be a matter authority to bind over 10 this court." The pervery incouvenient to the subject, if it should son that did this in the present case, was a jusonce be settled for law, that a justice of peace tice of peace for the county of Middlesex, in Cumberland might bind a man over to this and undoubtedly he mighi hind over to court sitting at Westminsier. The manner of this court ; this court having a jurisdiction of taking the present recognizance was illegal | Oyer and Terminer for that county. Howtoo, io as much as there was the oath of no ever he had before bim several precedents one, por ibe confession of the party, at the of justices of peace of other counties biudatime 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 him several precedents of reover 1o 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 thority was not inserted. He had seen several in the recngnizance for what cause he is to ap- too, which are only in this general form ad pear; tbe recognizance is signed too, Ch. de respondendum, &c. And as io 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 what the defendant bas 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 Concerniog the non-examination of Miller, nizance are thereby cured; for this purpose the p. 835, see what Mr. Donning said in the chief justice mentioned the case of Widrington House of Commons, reported 16 New Parl. and Charlton, Trin. 11 Apne. That was an Hist. p. 1279. appeal of murder ; the defendant did not ap Of ihe 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, the Reply of the AtJustice 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 Hill had written in bis 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.”
nor any reason given why they were not, they
could not by the known course of the court, See, also, another report of the same case nor ought in reason to have any weigbt, op a iu 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 v. be some mistake in this report; perhaps they Earbery, which I suppose relate to this same might be read in extenuation of the punishperson, though 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 illness in defendant's witnesses, were some scandalous reflections upon tbe go or non-attendance, though served with subvernment.”
pæpas, for sickness of the witnesses, if not In the precediug Report of Almon's Case sudden, would not be sufficient, but the defenare some incorrectnesses whicb I bave pot veu-dants should have moved to put off the trial.” tured to alter.
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
in reading over the paper itself, and in cousideraSamuel Athawes, of Martin's-lane.
tion of the proofs that are to be laid before you, Henry Voysey, Clement's-lane.
I should have thought it a case so plain, and Joseph Lancaster, Green Lettice-lane.
in so ordinary a course of justice, that it would William Gill, Abchurch-lane.
absolutely be impossible to have mistaken, John Whitmore, Lawrence Poultney-lane.
either the application of the proofs of the Joshua Redshaw, St. Peter le Poor.
charges that are laid, or the conclusion to be William Devisme, Bartholomew-lane.
made from them. I have not of myself been
able to imagine, nor have I learnt from the Talesmen.
conversation of any one man, that there is a William Cave, of Farringdon Without. serious man of the profession in the kingdom, William Washer, Bishopsgate Within. who bas the smallest doubt whether this ought George More, Farringdon.
to be deemed a libel or vot: my memory
deJoshua Woodward, Bell-yard, Gracechurch- serts me exceedingly, if the learned gentlemen street.
who spoke of this subject before, did any time Richard Ayres, Bishopsgate-street.
venture to say, in so many plain words, that
the contents of that paper were legal and July 18, 1770.
innocent. I am mistaken if they did. It 'The case was opened by Mr. Walker. –
seems to me impossible that such an idea The record stated, that the defendant, John member it right, from the general and loose
can be formed; but instead of it, if I reMiller, did unlawfully print and publish, or
discourse of them, concerning the liberty of cause to be printed and published, a certain seditious paper, entitled, The London Evening ject,' concerning the right of individuals to
the press, it was a large and undefined 'sub. Post, Saturday, December 16th, lo Tuesday, speak, to write, to publish with freedom, their December 191h, in which was contained a certain libel, reflecting upon the King, the
own free thoughts, upon all manner of subadministration of government, his principal the same time pretty generally handled. Now,
jects; these topics were pretty largely, but at officers of state, and the members of ihe hon. it does not appear to me tbey were or could, in House of Communs, in these words, [The the nature of it, be applied to the present case. paper read.]1
The defendant pleaded Not For I neither do, por ever will, attempt to lay Guilty.
before a jury, a cause, in which I Sol. General (Thurlow). Please your lord- the necessity of stating a single principle that · ship, and you gentlemen of the jury, I am like- went to intrench, in the smallest degree, upon wise of counsel for the crown in this prosecution, the avowed and acknowledged liberty of the which is brought by the Attorney General subjects of this country, even with regard to against John Miller. "I have very seldom found the press. The complaint I bave to lay before myself more puzzled how to state a question to a you, is, that that liberty has been so abused, court, and in what manner to adapt it to a court, so turned to licentiousness, in the manner in than I am upon the present occasion. Because which it bas been exercised upon the present
occasion, that under the notion of arrogating * Published in the London Museum (of liberty to one man, that is, the writer, printer, wbich Miller was the publisher) for October and publisher of this paper, they do, in effect 1770.
and consequence, annihilate and destroy the f Owing to a neglect of the summoning liberty of all men, more or less. Undoubtedly officer, only seven of the Special Jury attend the man that has indulged the liberty of robed, upon which Mr. Beardmore, the defen. bing upon the highway, has a very considerdant's attorney, complained to the Court of the able portion of it allotted to him. “But where summonses for the Special Jury not being is, is the liberty of the man that is robbed? Where sued in proper time, and that to his certain is the liberty of the man that is injured ? Liknowledge, no summonses were delivered the berty consists in a fair and equal, public and day before at twelve o'clock. The Court al general enjoyment of every man's person, for. lowed the complaint to be just, but took no iune, and reputation, under the protection of further notice of it. Five Talesmen were then the law; and the moment the law is silent or drawn. Orig. Edit.
ivattentive to protect any man's reputation See it, p. 805, of this volume.
whatsoever, his reputation is taken away from