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pietur,' shall be taken, aut imprisonetur,' or would prefer a suggestion to the King's-bench. be imprisoned, aut dissesietur de libero tene- That Court ever acted by the known maxims of mento suo,' or have his freehold taken from common law, by rules, certainty and oalbs: him, 'vel de liberis consuetudinibus,' nor his the method then was, to send ministerial pure rights and privileges, aut exulet,' nor shall suivants to snatch the obnoxious man away, he be banished, aut utlegatur,' or out-lawed, and to convey him by back stairs up to the • aut alio modo destruatur,' or by any other privy council. The grievous pains mentioned means demolished, nec super eum ibimus aut in the act, I suppose, were the motherly ad. mittemus.' (The lord chief justice Coke's ex- monitions of the rack, that engine of tyranny, planation is, we will neither proceed upon him still to be seen, though not used amongst us.
coram nobis,' in the King's-bench, nor by But as often as the Commons met, and found commission ;) nor will we go, or send upon out these secret practices, so often were they bim, nisi per legale judicium parium suorum,' biasted by these memorable acts of our con. unless it be by the lawful judgment of his peers, stitution. • aut per legem terræ,' or by the law of the If we view the preamble of our modern in land.' 28 Ed. 1. Your lordship may please formations, my lord, we shall find they differ to observe, that all the penalties then in being, not in the least from suggestion. Thus, are here mentioned, as the known rules of law. “ Be it remembered, that sir Philip Yorke,
But lest any dispute should arise, what was knt. Attorney General of our sovereigo lord the meant by lex terræ et legale judicium parium king, who for our said lord the king, in his besuorum,' 'we bave the explanatory statute, half, prosecutes in his proper person, comes 42 Ed. 3, c. 3, which makes the whole as clear here into the court of our said Jord the king, as the sun at noon-day.
before the king himself in Westminster, &c. No man shall be put to answer without pre- and for our said lord the king gives the Court sentment before justices or matter of record, or here to understand and be informed, &c." by due process and writ original.
I thiok this very information is no more Now, my lord, the course of the Court is, tban a suggestion of a minister of the king, That if a person is upon bis recognizance, and not supported even by oath. If Mr. Attore charged with an information, he shall be put ney's word is so strong, so magical as to render to answer instantaneously, without presentment his single faith the strongest testimony, I think by justices, without matter of record, without we may submit to a bow-string. process, and without writ original.
I shall now, my lord, introduce another act That an information is no process is plain, previous to this, which blasts at once the root, from the common form of concluding, praying the branches and the blossoms of informations, process of the Court, as mine runs; “Wbereupon at one puff. This act was 25 Ed. 3, c. 4. the said Attorney Geveral of our now said lord “ Wbereas it is contained in the great franthe king, prays the consideration of the Court chises of Magna Charta of England, that none in the premises, and that due process of law shall be imprisoned, or put out of his freehold, issue against him the said Matthias Earbery." nor of his franchises, nor free customs, unless
If we look farther backwards to the preamble it be by law, it is accorded and assented, and of this act, we shall find it was levelled to ex- established, that from henceforthi pone shall clude informations, or proceedings equally as be taken by petition, or suggestion made 10 our bad. The words are,
lord the king, or to bis council, unless it be “ At the request of the Com by their upon indictment, or presentment of his good petition put forth, in this parliament, to eschew and lawful people of the saine neighbourhood : the mischief and damage done to divers of his and where such deeds be done, in due manner, Communs by false accusers, which oftentimes or by process made.” bave made their accusations more for revenge, When we compare this act with the Attorand singular benefit, than for the profit of the vey-General's coming before the king in Westking, or of his people, which accused persons minster, with his information in bis hand, my sometimes have been taken, and sometimes lord, be stares the act full in the face. caused to come before the king's council, by I could proceed to the other explanatory writ or otherwise, npon grievous paios against statutes, all to the same purpose, particularly the law, it is accorded, for the good governance 18 Ed. 3, c. 3 ; 28 Ed. 3, c. 3. of the Commons, that no man be put to an- In the face of all these acts, we find only the swer, &c."
bare suggestion of an attorney-general stand We must observe this method is said ori- instead of a process, and instead of that cerginally to be against law, that Magna Charta tainty the defendant has an undoubted right to, was eladed, that this act was contrived to give as our ancient courts of judicature always rea it new vigour by those restriogent lines which quire. In these acts, certainty is provided for, bound up all its bleeding wounds.
before the defendant is brought in a trial, by a I observe, my lord, that this, and several bill found by a grand jury. By the modern other acts were pointed against bringing people practice the subject comes to no certaioty, no to answer by suggestion, which is only another evidence till he comes to a trial. I desire your word for information. I do not imagine at that lordship to observe, that very near five years time of day, when the acts were fresh, and in have passed since I pleaded, and am arrived at their full vigour, that any minister of a prince no certainty yet.
The reason appears very plain to me why al 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. Informations, 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 1 tions by a very learned argument, to wbich I to answer by being demanded to appear before think he had not very learned answers. any summons is sent out: how different 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 hanged 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 other 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 of 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 iuformatious by his 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 shall beg leave to say something to that part; | liveries, signs and tokens, and retainders by in. only I shall previously premise, that the fre- dentures, promises, oaths, writings, or otherquent statutes, all to the same purpose, crowded wise; embraceries of bis subjects, untrue de together in Ed. 3d's reign, were owing to the meanings of sheriffs in making panels, and encroachments of the privy council, who were oiber 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 couri of Star-chamber was the sea back, and mended the breaches made erected upon a supposed detect in grand juries, upon us by those inundations: whereas we to find out crimes by bill anil evilence. 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 your bench?
of previous informations in obe 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 Flen. 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 cburchmen 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 times, after the was read, and the persons were summoned in civil wars, which were just skinned over, and to answer ; por was the bill found 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, vor does your bench take any porary, to continue for seven years.
cognizance of the information before the deIt seems calculated to serve the ends of the fendant comes to his trial. duke, to bring his enemies into his 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 aptient and fundamental lion towards the latter end, omitted by sir Edward Coke, we shall find, that though the • 3 Hen. 7, c. 1. council had a power to call them by sugges- + Coke 2 Inst. p. 51. 11 Hen. 7, c. 3. tion, they were remitted to be tried in the com- Repealed i Hev. 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 ihe verdict of twelve men) upon bare informa- least shadow of proof tbey were ever heard of tion for the king before them made, should before. have full power and authority, by their dişcre- 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 dope, by any person Dest pursue them to their present growtb. or persons, against the form, ordinance, and ef- Sir Francis Winningtou observes, that in fect of any statute made, and not repealed, &c. Rastal's and Coke's Entries, there are no joforBy colour of which act, shaking ibis funda- mations, but only upun penal statutes; and in mental law, it is not 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 Empson, knt. and Edmund Dudley, Thus informations, in the manner I stated being justices of peace throughout all Eng. them before, slept, after the repeal of the act land; and upon this unjust and injurious act (1 Hen. 8, c. 6,) to the 5 Car. i. I suppose the (as commonly in like cases it falleth out) a case was thus : [See the Case, vol. 3, p. 298.] new office was erected, and they made them- Hollis, Elliot, and some others, bad been selves masters of the king'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 iake 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. Alter ibis, as sir Francis Winnington obIt is not doubted but tbat they extended their serves, they slept to king Charles 2. “ After 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 neither.” 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 it ever infor-fusing to admit, men to traverse those false imations came into dispute, they could not offices by law. If any were outlawed, the law stand, but must necessarily fall to inę ground.” was strained to its rigour, to amount to the for- He says moreover, “ informations at first were feituré of goods and lands.”
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 this kingdom, matters concerning which a grand jury may Jan. 1732, I find the report of the coroner in enquire, are direcily contrary to the scope of the Crown-office, William Bellamy, wbose Magpa 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 wealıb : he says, the early records all those laws of liberty were confirmed, 12 Will. begio 1 Ed. 3. If so, we may surely expect
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 be says the bag rolls contain an abstract of that no prescription can deprive us of the beevery prosecution by indictment, appeal, infór- nefit of them, even though an act of parliament mation, &c. He says, with regard to informa. could be produced before that confirination, tions, they were very frequent in Henry 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 he spring it is; sir Francis Winnington has inlieve him, 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 bow informations came * The Report is in 5 Mod. 459.
See also, into the King's-bench in Henry 7th's reigo. Holt, 362. See also Rex v. Abrabam, Comb, The act above mentioned gives power to courts 141, 1 Shower, 46. Res y, 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 has 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 beard that they portion as Portugal does to Spain; one slip of bad authority to bind over to this courf. 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 3; si Edw. 3, 18; 49 Edw. 3; and 1 & 2 common law. If that sort of common law can Phil. & Ma. He took notice farther, hat be prescribe to Magna Charta, and all our statutes bad entered into this recognizance so long ago of liberty; if the suggestion of the plaintiff as Mich. term last; and no information has against ihe 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
Jo the case of Kendal and Roe, the same secretaries of state not to sigu these warrants lord chief justice said, the secretary of state's themselves. To the secood objection they power to commit was common law. I have could not enquire into it upon this motion; beheard 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 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 10 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 reign. I hope this day, secution against the defendant, he would have from the candour and justice of yönr lordship, been intitled to be discharged. But till then, better things; that you will lift up Britannia's by the rules of the court, be cannot; accorddrooping 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.
“ Mr. Josling moved, that a certain recog
nizance, by which the defendant was bound to nardiston's Reports, vol. 2, pp. 293, 346.
appear in this court, might be taken off the file; “Tue 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 potice 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 sbould 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 tbe 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, sigoed De la Faye; and he conceived Michaelmas term a warrant was issued forth that this warrant ought to bave 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 to and not 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 him; 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 bim 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 bis 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 he 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, Mr. 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 Fage ; 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 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 signed Cb. De la fact did not appear to 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, wbelber 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 have bis appearance recorded, he court was illegal; which was the same tbing as prayed to be discharged. Upon this the Attor- if he had in words directly contended that he was bey-General exhibited two informations against pot obliged to appear. Hesubmitted it therefore, biin in 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 defendaut 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 lito this court, was illegal, and that he ought to cense, as an appearance ;' for which reason be discharged from it. The Court told him 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 daut did appear to these informations. But recorded his appearance to the informations supposing the fact to be that he did suhmit 10 This Mr. Josling said was the 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 his motion was regular. He said he should to appear, was illegal, for the reasons he had not contend but it bas 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 autborities suspected of treasonable practices, was legal. to support the several parts of his 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 the books to justify it. However it Lut. 951. 11 11. 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 settled upon solemn and it manifestly is against the rights and li- debate, that a secretary of state inig bt 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 warrapt would have been disputed at fore the secretary of state bimself, as ibe 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; lie said he give an opinion, whether it was legal, or not. should not contevd but ihere were precedents This Court could not make a rule upon the to justily a justice of peace in binding a man inessenger, 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 jurisdiction which is contined within the ther, whether in general justices of peace hare bounds of his county. And it would be a matter autbority to bind over to ibis court.' The pervery inconvenient to the subject, if it should son that did this in the present case, was a juisonce be settled for law, that a justice of peace tice of peace for the county of Middlesex, in Cumberland might bind a man orer to this and undoubtedly be miglii hind over to court sitting at Westminster. The manner of this court; this court having a jurisdiction of taking the present recognizance was illegal | Oyer and Terminer for that county. Howe too, in as much as there was the oath of no ever he had before bim severai precedents one, por the confession of the party, at the of justices of peace of other counties biuda time 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 to appear at the court of King's-bench at cognizances taken by judges of this court and Westminster ; whereas the stile of ibis court justices of peace, wherein the stile of their auis · coram rege ubicunque;' it is not inserted inority was not inserted. He had seed 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. And as to the other ex. VOL. XX.