VVE the Oppressed People before mentioned, do seriously declare ou [...]selves Agrieved and Injured by being Convicted and Fined unheard in our own defen [...]e, and without so much as having any Summons or Notice given us to make our appearance to answer before our Accusers Face to Face before Conviction, or the Person Convicting; wherein we conceive we have not Due Order of Law, nor equal Ri [...]ht allowed us, according to the Law of God, and common course of Justice, usage of England, and Oath of Iustices of Peace, enjoyning the due Administration of Equal Law, Justice, and Right to all the King's Subjects, Poor and Rich, &c. To hea [...] both parties, that the Person accused (or under Prosecution) may have Liberty to answer for himself, Plead and make Defence, before Judgment pass, or Process be awarded, or Issue, Is such an Essential and Indispensible point of Justice and equal Right, as cannot be dispersed withal according to the Oath of Iustices; and the conteary (viz. Judging persons unheard) ranked among those ways whereby Justice is (or may be) perverted. And is therefore by Michael Dalton, and o [...]hers, termed Precipitation. See Dalton's Country Justices. sol. 4, and 5. Under the title of [The first Ordeining of Iustices of the Peace.] the passage is this, viz.
‘Justice may be Perveted several wayes, &c.—By Precipitation, or too much Rashness; when they proceed Hastily without Due Examination and Consideration of rhe Fact, and of all Material Circumstances, or Without Hearing Both Parties: For as one saith truly, Qui aliquid statuerit Parte inauditâ alterâ aequum Licèt statueris haud aequus est. i. e. He that shall Judge or Determine a Matter, the one Party being Unheard, although he shall Judge aright, yet is he not a Just Judge’ ‘Yea (saith he) God himself hath given us Presidents of such Deliberate Proceedings, as you may see in Genesis, cap. 3. vers. 8.’
Proving how God called our first Parents, Adam and Eve, into Examination before he past Sentence. And also had even the Serpent convicted of his offence before his Face, by the Womans Evidence, and thereupon told him the reason of his Punishment.
He quotes also, Gen. 18. 21. Which proves that before the Lord destroyed Sodom, he said, I will go down and see, whether they have do [...]e altogether according to the Cry of it, and if not, I will know. Also he quotes Judges, 19. 30. compared with Chap. 20. Verses, 3, 4, 7, 12, 13. Shewing that about the Benjamites forcing the Levite's Concubines that she died: The Children of Israel considered of the matter, took advice and counsel together, examined the Levite, saying, Tell us how was this Wickedness? And to the Benjamites, What Wick [...]dn [...]ss is this that is done among you? now therefore deliver us the Men, the Children of Belial, &c. And all this before they went out to [...]attle against Benjamin.
To which may be added, it was contrary to the very Law and Justice of the Romans, to condemn Persons unheard in their own de [...]ence. The Apostle Paul, when Pers [...]cuted by the Jews, had liberty to answer for himself, before Festus and others of the Roman Governours, at Caesar's Judgment Seat. See Acts 21. 40. & 22. 1. &c. and Chap. 24. 10. and Chap. 25. 5, 7, 8, 10, 16. When the Chief Priests and Elders of the Jews desired to have Judgment against Paul, Festus answered them, It is not the manner of the Romans to deliver any Man to die, before that he which is accused have the Acc [...]s [...]rs Face to Face, and have License to answer for himself concerning the Crime laid against him. 'Tis con [...]rary to the Law of God to convict or condemn Persons unheard. See D [...]ut. 19 17, 18. viz. Both the Men betw [...]en whom the Controversy is, shall stand before the Lord, &c.—And the Judges shall make diligent Inquisition, &c.—
And Nichodemus said, Doth our Law judge any Man before it hear him, and know what he doth? John 7. 51. Oh! it is the honour of Kings to search out a matter, Prov. 26. 2. As that Prince and Just Judge said, I was a Father to the Poor, and the Cause which I knew not I searched out, and I brake the jaws of the Wicked, and pluckt the Spoil out of his Teeth, Job 29. 16, 17.
Against giving Judgment without hearing the Party, Lord Chief Justice Cook gives this Instance, viz. For Hussey the Chief Justice his request to King Henry the 7th, That he would not d [...]sire to know their Opinions before hand in the Case of Humphrey Stafford (that Arch Traytour) which the King accepted. Upon this Justice Cook addeth, viz.
‘For how can they be Indifferent, who have delivered their Opinions Before-hand, Without Hearing the Party, when a small Addition or Substraction may alter Cook 3 part fol. 29. the Case. And farther (saith he) How doth it stand with their Oath, who are sworn, That they should well and Lawfully serve our Lord the King, and his People, in the Office of a Justice, and do Equal Law and Execution of Right to All his Subjects. See Cook. 3 part fol. 29.’
Object. That the Justices Record made of the offence upon the Confession of the party, or Oath of two Witnesses, or notorious Evidence and Circumstance of the Fact, shall to all Intents and Purposes be in Law taken and adjudged to be a perfect Conviction, &c.
Answ. 'Tis not said, It shall be such a Conviction without hearing the party accused, nor doth this make void the great point of Equity and Justice, Of hearing the party charged before Judgement or Conviction, but rather grants it as implyed. For,
1st. In the first place, the Confession of the party is mentioned in order to Conviction, and to whom is this Confession made but to the Justice convicting? and then the party must needs be heard.
2dly. The taking persons assembled into Custody (as the Act directs) it is to the intent they may be proceeded against according to the same Act of the 22 Car. 2. against Conventicles, fol. 10. 11. as the words of the Act are plain. But what need of taking them into Custody to such intent, if it were sufficient to convict them in their absence or unheard? However it is not reason to suppose a Statute Law is intended to make void the Justice of Common Law, in judicial Proceedings. Nor can it rationally excuse such Conviction of persons unheard, to say there is liberty of Appeal, and Judicial hearing and Tryal allowed thereupon at Quarter Sessions, for before that can be obtained the party concerned is Convicted, Adjudged, and so Condemned (as guilty) and brought under an Execution, his Goods and Chattels seized and distrain'd, and it has been the Lot of divers to be sorely opprest and agriev'd, by the spoil, excess and damage in distress-making; and all this occasion'd by a Conviction and Process thereupon, the Oppressed being Vnheard in their own defence. Justices determining offences, &c. on a bare Information for the King, by the [Page 5] Stat. 11. H. 7. c. 3. Lord Cook also severely opposeth, in his reasons for the repeal of the said Stat. by one of the 1 H. 8. c. 6. Besides divers Poor Men unable to be at the charge of Appeals, others so oppressed and spoiled by this kind of precipitant Procedure, as that they are disabled from prosecuting any appeal, considering the loss of time and charge.
And another great Evil, as well as Scandal to the Government, and Injury to the Subject, hath happened, as the consequence of Convicting Persons Vnheard. Informers have given Informations upon Oath, notoriously false in Fact; against certain Persons, to their great trouble and damage, necessitating their giving the Justices the trouble of divers Appeals at their Quarter Sessions.
Against punishing Persons before heard, take another Instance out of Judge Cook's Instit. 2 pt. fol. 55. viz.
‘The Philosophical Poet Virgil doth notably describe the damnable and damned Proceedings of the Judge of Hell, viz.’
‘Gnosius hic Rhadamathus habet durissima Regna, Castigat{que} audit{que} Dolos Subigit{que} fateri.’
‘First he Punisheth, and then he Heareth, and lastly Compelleth to confess, and make and Marr Laws at his Pleasure.’
‘Like as the Centurion in the Holy History did St. Paul; for the Text saith, Centurio apprehendi Paulum iussit, et eum catenis ligari, et tunc interrogabat quis esset, Act. 22. 24, 27. et quid fecisset.’
‘But good Judges and Justices abhor these Cook 2 Part. Inst. fol. 55. Courses.’
Whereas in our late Convictions, there's commonly this passage, viz. As well by the Oath of Two Credible Witnesses, as by the notorious Evidence and Circumstance of the Fact, &c. To which we say, How can they be Credible Witnesses, who are notoriously known to take upon them to be Common Informers for their own Interest, in part of the Fine? The Act against Conventicles, doth distinguish between Informers and Witnesses; the Informers being only to give Information, or make discovery [Page 6] of the Conventicles. The Witnesses to give Testimony of the Fact done by persons unlawfully assembled, as appears by the said Act, 22. Car. 2. fol. 6. and 12 for such Witnesses as are assigned by Law and Justice are no parties; nor interressed Persons; but such as the Law renders Credible, as Sr. John Fort [...]scue (Lord Chancellor of England, in the Reign of King Henry the 6th) describes them, viz.
‘Not Unknown Witnesses, Hired Persons, Poor Men, Vagabo [...]ds, Unconstant People, or such, whose Condition and Nau [...]htiness is unknown; but such as are Neighbours, able to live of their own, of good Name and Fame, of Honest Report, &c.’
'Tis by Evidence of such Witnesses that Jurors ought to be inform [...]d, Vid. Fortescu de laudibus legum Angliae, Chap. 26. pa. 60 61. Chap. 28. page 63, 64.
And how can there be t [...]e notorious Evidence of the Fact in the absence of the Convicting Justice, or when he was neither present at nor saw the Meeting against which Information is given?
We further complain of being injured and agrieved in that the Names of these pretended Credible Witnesses, to wit, the Informers, are not inserted in the Process or Warran [...]s for Distress, nor Indorsed upon them. Besides, the Master Informers, employing other persons for their Se [...]vants or Deputies to Prosecute, &c. and to make Oath ag [...]inst us under pretence of Witnesses. And these proceed clandestinly & hiddenly against us, & their Names concealed, being not indorsed upon the Process; which we also conceive is Illegal, as well as Injurious. See the Statute 18 Eliz. 5. §. 1. For Redressing of divers Disorders in Common Informers, &c
‘Be it Enacted, that every Informer upon any Penal Statute, shall exhibit his suit in proper Person, and pursue the same only by himself, or by his Attorney in Court. And that none shall be admitted or received to pursue against any Person or Persons upon any Penal Statute, but by way of Information or Original Account, and not otherwise. Nor shall have, nor use any Deputy or Deputys at all, and that upon every such Information, [Page 7] which shall be Exhibited, a special Note be made of the very Day, Month, and Year of the Exhibiting thereof, &c. And that upon every such Process, sued out, shall be Indorsed, as well the Partys Name, that pursued the same as also the Statute, upon which the Information, in that behalf made, is gro [...]nded.’
Upon which Shepherd in his Justice of Peace, observes thus, viz.
‘If any Clerk that receivs the Information, do not set down the Day, Month, and Year of Exhibiting it, or not indorse upon the Process, the In [...]ormers Name, and the Statute upon which he goes, or make o [...]t Process before this be done; the Penalty of 40 s. is to be imposed 18 Eliz. 5. here, and if the In [...]ormer have his hand in this, or take reward without license of one of the Courts of Westminster, or Compound without license, or doth follow any Suit by his Deputy, and not in his proper Person, or by his Attorney in Court, he is to be put in the Pillory two hours in a Market Town, made to pay 10 li. Fine, and be put out of his office, &c. Shepherds Justice of Peace, 2 pt. p. 263, 225.’
It appears that Informers legally Authoriz'd, ought to be known Officers of Credit or Officers upon Record; and not obscure Persons, of Ill Fame, nor Dissolute, nor Poor, but Responcible in Estate, able to make restitution, whose Names, Habitations, and Reputations were unquestioned. For where the Informer is Non-suit or overthrown, the Court shall assign Costs to the Defendant, to be immediately levyed by Execution issuing out of the same Court. Wingates Abridg. tit. Infor. on Stat. 18 Eliz. 5. See the Stat. § 3.
Observe further what Sr. John Fortescue saith in this Case in his said Book, in Commendation of the Laws of England, Chap. 28.
‘Verily no Man can be safe in Body or Goods whom his Adversary [Page 8] may convince in every case, with two unknown witnesses of his own Choosing and bringing forth, &c.—But such Mischief and Inconvenience cannot be wrought by Witnesses that make their Depositions in the presence of 12 Credible Men, Neighbours to the Deed that is presently in Question, and to the Circumstances of the same, which also know the Manners and Conditions of the same Witnesses, specially, If they be nigh dwellers, and know also whether they be Men worthy to be Credited or no.’
Edward Waterhouse Esq; Commentary on Fortescue, 1663. Licensed by the Judges, Hale, Windham, Bridgman, Atkins, Twisden, Turner, Hide, and four others, Chap. 26. on the word Ignoti.
‘Witnesses are not taken Hab Nab, as we say, such as no body knows, but are their own Affirmers, whose Condition, Life and Way men are unsatisfied in, because Secret and Subdolous men never known in their own, nor ever known out of other mens way: Nor [Conductitij] Bought and Made Witnesses—so rhat Acceptance of Rewards being Punishable, the Law has done wisely to see that Witnesses be not Conductitij, such as either Need for want of Fortune, and will take for Covetise any Gratification to elude Justice, and become False. [Vagi inconstantes]—Loose Persons—carryed up and down by the Impetuosity of Vice to this and that, without settlement in any thing. The Laws Wisdom is apparent, in that it has excluded Necessitous Persons, and such as have habituated themselves to Shift and Shark, from all Credit, as Witnesses.’