Klopfer v. North Carolina, 386 U.S. 213 (1967)

U.S. Supreme Court

Klopfer v. North Carolina No. 100 Argued December 8, 1966 Decided March 13, 1967

Reading: Klopfer v. North Carolina, 386 U.S. 213 (1967)

386 U.S. 213 CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA
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Petitioner ‘s trial on a North Carolina criminal trespass indictment ended with a announcement of a mistrial when the jury failed to reach a verdict. After the case had been postponed for two terms, suer filed a gesture with the trial motor hotel in which he petitioned the court to ascertain when the State intended to bring him to test. While this motion was being considered, the State ‘s prosecutor moved for license to take a “ nolle prosequi with leave, ” a adjective device whereby the accused is discharged from custody but remains capable to prosecution at any time in the future at the delicacy of the prosecutor. Although petitioner objected that the trespass charge was abated by the Civil Rights Act of 1964 and that entry of the nolle prosequi order would violate his federal right to a rapid trial, the trial court, without stated justification, granted the prosecutor ‘s gesticulate. On appeal, the State Supreme Court affirmed the trial court ‘s military action, holding that, while a defendant has a good to a quick trial if there is to be a test, that right does not require the State to prosecute if the prosecutor, in his discretion and with the woo ‘s approval, elects to take a nolle prosequi .
Held : By indefinitely postponing prosecution on the indictment over suer ‘s protest and without stated justification, the State denied suer the right to a rapid trial guaranteed to him by the Sixth and Fourteenth Amendments of the Federal Constitution. Pp. 386 U. S. 219 -226 .
266 N.C. 349, 145 S.E.2d 909, reversed and remanded. foliate 386 U. S. 214
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court .
The question involved in this case is whether a State may indefinitely postpone prosecution on an indictment without stated justification over the objection of an accused who has been discharged from hands. It is presented in the context of an application of an strange North Carolina condemnable adjective device known as the “ nolle prosequi with forget. ”
Under North Carolina criminal operation, when the prosecuting lawyer of a county, denominated the solicitor, determines that he does not desire to proceed far with a prosecution, he may take a nolle prosequi, thereby declaring “ that he will not, at that time, prosecute the suit far. Its impression is to put the defendant without day, that is, he is discharged and permitted to go whithersoever he will without entering into a recognizance to appear at any other time. ” Wilkinson v. Wilkinson, 159 N.C. 265, 266-267, 74 S.E. 740, 741 ( 1912 ). But the pickings of the nolle prosequi does not permanently end proceedings on the indictment. On the contrary ,
“ When a nolle prosequi is entered, the encase may be restored to the trial agenda when ordered by the judge upon the solicitor ‘s application. ”
State v. Klopfer, 266 N.C. 349, 350, 145 S.E.2d 909, 910 ( 1966 ). And if the solicitor petitions the court to nolle prosequi the encase “ with farewell, ” the consent required to reinstate the prosecution at a future date is implied in the order, “ and the solicitor ( without far order ) may have the font restored for trial. ” Ibid. Since the indictment is not discharged by either a nolle prosequi or a nolle prosequi with leave, the codified of limitations remains tolled. State v. Williams, 151 N.C. 660, 65 S.E. 908 ( 109 ). page 386 U. S. 215
Although introduction of a nolle prosequi is said to be “ normally and by rights left to the delicacy of the Solicitor, ” State v. Moody, 69 N.C. 529, 531 ( 1873 ), early decisions indicate that the State was once mindful that the trial evaluate would have to exercise control over the operation to prevent oppression of defendants. See State v. Smith, 129 N.C. 546, 40 S.E. 1 ( 1901 ) ; State v. Thornton, 35 N.C. 256 ( 1852 ). But, in the present font, neither the court below nor the solicitor offers any reason why the case of petitioner should have been nolle prossed except for the suggestion of the Supreme Court that the solicitor, having tried the defendant once and having obtained only a mistrial, “ may have concluded that another plump at it would not be worth the time and expense of another effort. ” 266 N.C. at 350, 145 S.E.2d at 910. In his brief in this Court, the Attorney General quotes this lyric from the opinion below in support of the sagacity .
Whether this procedure is presently sustained by the North Carolina courts under a codified or under their concept of the coarse jurisprudence procedure is not indicated by the public opinion of the woo, the transcript or the briefs of the parties in the present case. The only statutory reference to a nolle prosequi is in § 15-175, General Statutes of North Carolina, [ Footnote 1 ] which, on its face, does not apply to the facts of this case. possibly the procedure ‘s page 386 U. S. 216 genesis lies in early on nineteenth hundred decisions of the State ‘s Supreme Court approving the habit of a nolle prosequi with entrust to reinstate the indictment, although those early on applications of the operation were quite different from those of the period following act of § 15-175. Compare State v. Thompson, 10 N.C. 613 ( 1825 ), and State v. Thornton, 35 N.C. 256 ( 1852 ) ( capias issued immediately after introduction of the nolle prosequi with leave ), with State v. Smith, 170 N.C. 742, 87 S.E. 98 ( 1915 ) ( capias issued eight years after a nolle prosequi with leave was taken, even though the defendant had been available for trial in 1907 ) .
The consequence of this extraordinary criminal routine is made apparent by the case before the Court. A defendant indicted for a misdemeanor may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to test, over his expostulation, throughout the inexhaustible period in which the solicitor may restore the casing to the calendar. During that time period, there is no means by which he can obtain a dismissal or have the event restored to the calendar for trial. [ Footnote 2 ] In malice of this result, both the Supreme Court and the Attorney General country as a fact, and trust upon it for affirmance in this subject, that this procedure, as applied to the petitioner, placed no limitations upon him, and was in no way offensive of his rights. With this we can not agree
This routine was applied to the petitioner in the stick to circumstances : page 386 U. S. 217
On February 24, 1964, petitioner was indicted by the august jury of Orange County for the crime of criminal trespass, a misdemeanor punishable by fine and imprisonment in an total and duration determined by the court in the exercise of its free will. [ Footnote 3 ] The poster charged that he entered a restaurant on January 3, 1964, and ,
“ after being ordered. .. to leave the said premises, willfully and unlawfully refused to do so, knowing or having reason to know that he. .. had no license therefor. .. . ”
prosecution on the indictment began with admirable promptness during the March, 1964, Special Criminal Session of the Superior Court of Orange County ; but, when the jury failed to reach a verdict, the trial estimate declared a mistrial and ordered the lawsuit continued for the term .
respective weeks prior to the April, 1965, Criminal Session of the Superior Court, the State ‘s solicitor informed petitioner of his intention to have a nolle prosequi with leave entered in the case. During the seance, suer, through his lawyer, opposed the entry of such an order in assailable court. The trespass charge, he contended, was abated by the Civil Rights Act of 1964 as construed in Hamm v. City of Rock Hill, 379 U. S. 306 ( 1964 ). In hurt of petitioner ‘s opposition, the woo indicated that it would approve entry of a nolle prosequi with entrust if requested to do so by the solicitor. But the solicitor page 386 U. S. 218 declined to make a gesticulate for a nolle prosequi with exit. alternatively, he filed a motion with the court to continue the case for so far another terminus, which motion was granted .
The calendar for the August, 1965, Criminal Session of the court did not list Klopfer ‘s lawsuit for trial. To ascertain the condition of his case, suer filed a motion expressing his desire to have the charge pending against him
“ permanently concluded in accordance with the applicable laws of the State of North Carolina and of the United States equally soon as is sanely potential. ”
Noting that some 18 months had elapsed since the indictment, suer, a professor of fauna at Duke University, contended that the pendency of the indictment greatly interfered with his professional activities and with his change of location here and abroad. “ Wherefore, ” the motion concluded ,
“ the defendant. .. petitions the Court that the Court, in the practice of its general supervisory jurisdiction, ask into the trial condition of the load pending against the defendant and. .. ascertain the purpose of the State in regard to the trial of said charge and as to when the defendant will be brought to trial. ”
In response to the motion, the trial judge considered the condition of petitioner ‘s case in overt court on Monday, August 9, 1965, at which prison term the solicitor moved the woo that the State be permitted to take a nolle prosequi with exit. even though no justification for the project introduction was offered by the State, and, in malice of suer ‘s objection to the order, the court granted the State ‘s motion .
On attract to the Supreme Court of North Carolina, suer contended that the entrance of the nolle prosequi with impart club deprived him of his right field to a quick trial as required by the Fourteenth Amendment to the United States Constitution. Although the Supreme page 386 U. S. 219 Court acknowledged that entry of the nolle prosequi with exit did not permanently discharge the indictment, it however affirmed. Its opinion concludes :
“ Without question, a defendant has the correct to a quick trial if there is to be a test. however, we do not understand the defendant has the right to compel the State to prosecute him if the state ‘s prosecutor, in his delicacy and with the court ‘s blessing, elects to take a nolle prosequi. In this case, one jury seems to have been unable to agree. The solicitor may have concluded that another go at it would not be worth the time and expense of another campaign. ”
“ In this sheath, the solicitor and the woo, in entering the nolle prosequi with leave, followed the customary operation in such cases. Their discretion is not reviewable under the facts disclosed by this record. The order is affirmed. ”
266 N.C. at 350-351, 145 S.E.2d at 910 .
The North Carolina Supreme Court ‘s ending — that the good to a quick test does not afford affirmative protection against an undue postponement of trial for an accused fire from custody — has been explicitly rejected by every other state court which has considered the interrogate. [ Footnote 4 ] That decision has besides been page 386 U. S. 220 implicitly rejected by the numerous courts which have held that a nolle prossed indictment may not be reinstated at a subsequent term. [ Footnote 5 ] page 386 U. S. 221
We, besides, believe that the situation taken by the court downstairs was erroneous. The petitioner is not relieved of the limitations placed upon his liberty by this prosecution merely because its suspension permits him page 386 U. S. 222 to go “ whithersoever he will. ” The pendency of the indictment may subject him to public contempt and deprive him of employment, and about surely will force suppression of his speech, associations and participation in unpopular causes. By indefinitely prolonging this oppression, adenine well as the “ anxiety and concern accompanying public accusation, ” [ Footnote 6 ] the criminal procedure condoned in this case by the Supreme Court of North Carolina clearly denies the petitioner the correct to a rapid test which we hold is guaranteed to him by the Sixth Amendment of the Constitution of the United States .
While there has been a difference of opinion as to what provisions of this Amendment to the Constitution use to the States through the Fourteenth Amendment, that question has been settled as to some of them in the holocene cases of Gideon v. Wainwright, 372 U. S. 335 ( 1963 ), and Pointer v. Texas, 380 U. S. 400 ( 1965 ). In the latter case, which dealt with the “ confrontation of witnesses ” provision, we said :
“ In the light of Gideon, Malloy, and other cases cited in those opinions holding respective provisions of the Bill of Rights applicable to the States by virtue of the Fourteenth Amendment, the statements made in West and similar cases generally declaring that the Sixth Amendment does not apply to the States can nobelium long be regarded as the law. We hold that suer was entitled to be tried in accordance with the protection of the confrontation guarantee of the Sixth Amendment, and that that guarantee, like the justly against compelled self-incrimination, is ”
“ to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal page 386 U. S. 223 rights against federal impingement. ”
“ Malloy v. Hogan, above, 378 U.S. at 378 U. S. 10. [ Footnote 7 ] ”
We hold here that the correct to a rapid test is vitamin a fundamental as any of the rights secured by the Sixth Amendment. That correct has its roots at the very basis of our english law inheritance. Its first articulation in modern jurisprudence appears to have been made in Magna Carta ( 1215 ), wherein it was written, “ We will sell to no man, we will not deny or defer to any homo either justice or properly ” ; [ Footnote 8 ] but attest of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon ( 1166 ). [ Footnote 9 ] By the late thirteenth hundred, justices, armed with commissions of imprison manner of speaking and/or oyer and terminer [ Footnote 10 ] were visiting the page 386 U. S. 224 countryside three times a year. [ Footnote 11 ] These justices, Sir Edward Coke wrote in Part II of his Institutes ,
“ have not suffered the prisoner to be retentive detained, but, at their adjacent do, have given the prisoner full and rapid department of justice ,. .. without detaining him long in prison. [ Footnote 12 ] ”
To Coke, prolonged detention without trial would have been contrary to the law and customs of England ; [ Footnote 13 ] but he besides believed that the delay in test, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words “ We will sell to no homo, we will not deny or defer to any man either justice or right field ” had the follow effect :
“ And consequently, every subject of this realme, for injury done to him in bonis, terris, vel character, by any other subject, be he ecclesiasticall, or temporall, free, or adhere, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and quickly without check. [ Footnote 14 ] “ page 386 U. S. 225
Coke ‘s Institutes were read in the american Colonies by virtually every student of the law. [ Footnote 15 ] indeed, Thomas Jefferson wrote that, at the clock time he studied law ( 1762-1767 ), “ Coke Lyttleton was the universal elementary book of jurisprudence students. ” [ Footnote 16 ] And to John Rutledge of South Carolina, the Institutes seemed “ to be about the foundation of our law. ” [ Footnote 17 ] To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty. [ Footnote 18 ] Thus, it is not surprise that, when George Mason drafted the first of the colonial bills of rights, [ Footnote 19 ] he set forth a principle of Magna Carta, using wording similar to that of Coke ‘s explication : “ [ I ] normality all capital or criminal prosecutions, ” the Virginia Declaration of Rights of 1776 provided, “ a man hath a right. .. to a quick trial. .. . ” [ Footnote 20 ] That this correctly was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of the new nation, [ Footnote 21 ] page 386 U. S. 226 adenine well as by its big position in the Sixth Amendment. nowadays, each of the 50 States guarantees the right to a quick test to its citizens .
The history of the right field to a quick trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our fundamental law .
For the reasons stated above, the judgment must be reversed and remanded for proceedings not inconsistent with the opinion of the Court.

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It is therefore regulate .
MR. JUSTICE STEWART concurs in the result .
MR. JUSTICE HARLAN, concurring in the result .
While I entirely agree with the resultant role reached by the Court, I am ineffective to subscribe to the constitutional premises upon which that solution is based — quite obviously the vantage point that the Fourteenth Amendment “ incorporates ” or “ steep, ” as such, all or some of the specific provisions of the Bill of Rights. I do not believe that this is sound constituent doctrine. See my public opinion agree in the consequence in Pointer v. Texas, 380 U. S. 400, 380 U. S. 408 .
I would rest decisiveness of this case not on the “ quick test ” provision of the Sixth Amendment, but on the anchor that this strange North Carolina procedure, page 386 U. S. 227 which in effect allows department of state prosecute officials to put a person under the swarm of an unliquidated criminal charge for an indeterminate period, violates the requirement of fundamental comeliness assured by the Due Process Clause of the Fourteenth Amendment. To support that conclusion, I need only refer to the traditional concepts of due work set forth in the opinion of THE CHIEF JUSTICE .
[ Footnote 1 ]
N.C.Gen.Stat. § 15-175 ( 1965 ) :
“ A nolle prosequi ‘with leave ‘ shall be entered in all criminal actions in which the indictment has been pending for two terms of court and the defendant has not been apprehended and in which a nolle prosequi has not been entered, unless the judge for effective cause shown shall orderliness differently. The clerk of the superior court shall issue a capias for the halt of any defendant named in any criminal action in which a nolle prosequi has been entered when he has reasonable land for believing that such defendant may be arrested or upon the application of the solicitor of the district. When any defendant shall be arrested it shall be the duty of the clerk to issue a subpoena for the witnesses for the State indorsed on the indictment. ”
The provision was primitively enacted in 1905 .
[ Footnote 2 ]
On oral argument, guidance for the State informed the Court that a North Carolina indictment could be quashed entirely if it contained a invalidate defect. See besides N.C.Gen. Stat. §§ 15-15, 15-155 ( 1965 ) .
[ Footnote 3 ]
N.C.Gen.Stat. § 14-134 ( Supp. 1965 ). Although not expressly limited by codified, the extent of punishment is limited by N.C.Const. 186, Art. I, § 14 ( “ excessive bail should not be required, nor excessive fines imposed, nor barbarous or strange punishments inflicted ” ). See State v. Driver, 7 N.C. 423 ( 1978 ). Decisions of the country courts indicate that captivity for up to two years would not be an “ unusual punishment. ” See, for example, State v. Farrington, 141 N.C. 44, 53 S.E. 954 ( 1906 ). The constitutional limitation upon the amount of the ticket has not been judicially determined .
[ Footnote 4 ]
See Rost v. Municipal Court of Southern Judicial District, 184 Cal. App. 2d 507, 7 Cal. Rptr. 869 ( 1st Dist.1960 ) ; Kistler v. State, 64 Ind. 371 ( 1879 ) ; Jones v. Commonwealth, 114 Ky. 599, 71 S.W. 643 ( 1903 ) ; Barrett v. State, 155 Md. 636, 142 A. 96 ( 1928 ) ; Hicks v. Recorder ‘s Court of Detroit, 236 Mich. 689, 211 N.W. 35 ( 1926 ) ; State v. Artz, 154 Minn. 290, 191 N.W. 605 ( 1923 ) .
See besides Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297 ( 1966 ) ; People v. Bryarly, 23 Ill. 2d 313, 178 N.E.2d 326 ( 1961 ) ; People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891 ( 1955 ) ; State v. Courture, 156 Me. 231, 163 A.2d 646 ( 1960 ) ; State v. Keefe, 17 Wo. 227, 98 P. 122 ( 1908 ) ( the correct to a quick trial may be violated by undue delay in bringing a prisoner confined within the State to test, even though he is not held in hands under the indictment ) .
Dicta in decisions of the Colorado, Iowa, and Utah courts distinctly indicate that these States would besides hold that the rapid test right would protect a defendant in petitioner ‘s position : understand In rhenium Miller, 66 Colo. 2 ; 1, 263-264, 180 P. 749, 750-751 ( 1919 ) ; Pines v. District Court of Woodbury County, 233 Iowa 1284, 1294, 10 N.W.2d 574, 580 ( 1943 ) ; State v. Mathis, 7 Utah 2d 100, 103, 319 P.2d 134, 136 ( 1957 ) .
Although Pennsylvania has not decided the question presented by this case, decisions of its Supreme Court indicate that the “ right to a quick trial ” is lone applicable to a valet held in prison. See Commonwealth ex rel. Smith v. Patterson, 409 Pa. 500, 187 A.2d 78 ( 1963 ). But in that case, the Commonwealth ‘s Supreme Court held that the delay in trying the defendant and the failure to give him detect of the pendency of a complaint for eight years constituted a denial of due serve. furthermore, Rule 316 of the Commonwealth ‘s rules of criminal operation authorizes the court to dismiss a case which has not been brought to test within a “ fair clock. ”
By rule or legislation in 17 States, any defendant, whether at large or in detention, whose trial has been unduly delayed is entitled to a dismissal. See Ariz.Rule Crim.Proc. 236 ; Cal.Pen.Code § 1382 ; Ga.Code Ann. § 27-1901 ( 1953 ) ; Idaho Code Ann. § 19-3501 ( 1948 ) ; Iowa Code § 795.2 ( Supp. 1966 ) ; La.Rev.Stat. §§ 15:7.8-15:7.11 ( Supp. 1962 ) ; Me.Rev.Stat.Ann., Tit. 15, § 1201 ( 1964 ) ; Mont.Rev.Codes Ann. § 94-9501 ( 1947 ) ; Nev.Rev.Stat. § 178.495 ; N.J.Rev.Rule Crim.Proc. 3:11-3 ( Supp. 1966 ) ; N.D.Cent.Code § 29-18-01 ( 1960 ) ; Okla.Stat., Tit. 22, § 812 ( 1951 ) ; Ore.Rev.Stat. § 134.120 ; S.D.Code § 34.2203 ( Supp. 1960 ) ; Utah Code Ann. § 77-51-1 ( 1953 ) ; Wash.Rev.Code § 10.46.010 ; W.Va.Code Ann. § 6210 ( 1961 ) .
[ Footnote 5 ]
Thirty States continue to permit a prosecuting official to enter a nolle prosequi. Legislation or court decisions in 13 of these forbid reinstatement of the indictment at a subsequent term. See Lawson v. People, 63 Colo. 270, 165 P. 771 ( 1917 ) ; Price v. Cobb, 60 Ga.App. 59, 61, 3 S.E.2d 131, 133 ( 1939 ) ( by deduction ) ; Jones v. Newell, 117 So. 2d 752 ( D.C.App.Fla.,2d Dist., 1960 ) ; State v. Wong, 47 Haw. 361, 389 P.2d 439 ( 1964 ) ; People v. Watson, 394 Ill. 177, 68 N.E.2d 265 ( 1946 ), cert. denied, 329 U.S. 769 ; La.Rev.Stat. § 15:328 ( 1950 ) ; Barrett v. State, 155 Md. 636, 142 A. 96 ( 1928 ) ; State v. Montgomery, 276 S.W.2d 166 ( Mo.1955 ) ; In ra Golib, 99 Ohio App. 88, 130 N.E.2d 855 ( 1955 ) ; State ex rel. Hobbs v. Murrell, 170 Tenn. 152, 93 S.W.2d 628 ( 1936 ) ; Ex parte Isbell, 48 Tex.Cr.R. 252, 87 S.W. 145 ( 1905 ) ; Dudley v. State, 55 W.Va. 472, 47 S.E. 285 ( 1904 ) ; Woodworth v. Mills, 61 Wis. 44, 20 N.W. 728 ( 1884 ) .
Alabama permits reinstatement of an indictment nolle prossed with impart, but only if the defendant can not be brought before the court. See Ala.Code, Tit. 15, § 251 ( Supp. 1965 ). thus, this procedure is exchangeable to that of filing away the indictment, discussed below .
Of the remaining States, only North Carolina and Pennsylvania have held that a nolle prossed indictment could be reinstated at a subsequent term. See Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 ( 1928 ) .
several States permit the removal of the indictment from the test docket with exit to reinstate at some indefinite future date. But in each, use of the procedure has been limited to situations in which the defendant can not be brought before the court or where he has consented to the removal. See, e.g., People v. Fewkes, 214 Cal. 142, 4 P.2d 538 ( 1931 ) ; State v. Dix, 18 Ind.App. 472, 48 N.E. 261 ( 1897 ) ; Lifshutz v. State, 236 Md. 428, 204 A.2d 541 ( 1964 ), cert. denied, 380 U.S. 953 ; Commonwealth v. Dowdican ‘s Bail, 115 Mass. 133 ( 1874 ) ( indictment may be filed away merely after verdict and then only with the consent of the accused ) ; Gordon v. State, 127 Miss. 396, 90 So. 95 ( 1921 ) ( accept of defendant necessary ) ; Rush v. State, 254 Miss. 641, 182 So. 2d 214 ( 1966 ) ( but not if defendant was in a mental mental hospital at the fourth dimension the indictment was retired to the files ). At one time, Illinois decisions indicated that, when an accused was imprisoned within the State on another charge, an indictment might be filed away without his consent. See, e.g., People v. Kidd, 357 111. 133, 191 N.E. 244 ( 1934 ). But these decisions have since been overruled. See people v. Bryarly, 23 Ill. 2d 313, 178 N.E.2d 326 ( 1961 ) .
[ Footnote 6 ]
United States v. Ewell, 383 U. S. 116, 383 U. S. 120 ( 1966 ) .
[ Footnote 7 ]
380 U.S. at 380 U. S. 406 .
[ Footnote 8 ]
Magna Carta, c. 29 [ c. 40 of King John ‘s Charter of 1215 ] ( 1225 ), translated and quoted in Coke, The Second Part of the Institutes of the Laws of England 45 ( Brooke, 5th ed., 1797 ) .
[ Footnote 9 ]
“ 4. And when a robber or murderer or thief or receiver of them has been arrested through the aforesaid curse, if the justices are not about to come quickly enough into the country where they have been taken, let the sheriffs send word to the nearest judge by some well informed person that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them, and let the sheriffs bring them before the justices. ”
2 english Historical Documents 408 ( 1953 ) .
[ Footnote 10 ]
An example of the Commission of imprison delivery is set forth in Goebel, Cases and Materials on the Development of Legal Institutions 53 ( 7th rev.1946 ) :
“ The godhead baron to his beloved and faithful Stephen de Segrave and William Fitz Warin, greeting. Know that we have appointed you justices to deliver our imprison at Gloucester, in accord with the custom-made of our region, of the prisoners arrested and held there. And hence we order you that in company with the coroners of the county of Gloucester, you convene at Gloucester on the morrow of the festival of the Holy Trinity in the one-twelfth year of our reign [ Monday, May 22, 1228 ], to deliver the aforesaid jail, as aforesaid, for we have ordered our sheriff of Gloucestershire that, at the aforesaid meter and place, he cause to come before you all the prisoners in the aforesaid jail and all persons attached to appear against them and on account of them. In witness whereof, etc. Dated April 20, in the twelfth year of our reign. ”
“ The judges commissioned in a general oyer and terminer commission, ” Professor Goebel writes ,
“ are ordered to inquire by august jury of named crimes, from treasons to the fiddling crime, as to all particulars and to hear and determine these according to the law and custom-made of the region. ”
Id. at 54 .
[ Footnote 11 ]
Id. at 54 .
[ Footnote 12 ]
Coke, op. cit. above, n., at 43 .
[ Footnote 13 ]
See ibid .
[ Footnote 14 ]
Id. at 55. “ Hereby it appeareth, ” Coke stated in the adjacent paragraph ,
“ that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia ; plena, quia justitia not debet claudicare ; et celeris, quia dilatio est quaedam negatio, and then it is both justice and right. ”
late in the explication of chapter 29, Coke wrote that, in conformity with the predict not to delay justice, all of the King ‘s
“ commissions of oier, and terminer, of goale delivery, of the peace, & c. have this clause, facturi quod and justitiam pertinet, secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England. .. . ”
[ Footnote 15 ]
See Warren, History of the american Bar 157-187 ( 1911 ) ; Meador, Habeas Corpus and Magna Carta 23-24 ( 1966 ) .
[ Footnote 16 ]
Quoted in Warren, op. cit. above, nitrogen 15, at 174 .
[ Footnote 17 ]
Quoted in Bowen, The Lion and the Throne 514 ( 1956 ) .
[ Footnote 18 ]
See Coke, op. cit. above, nitrogen 8, at A4 ( Proeme ) .
[ Footnote 19 ]
See 1 Rowland, The Life of George Mason 234-266 ( 1892 ) .
[ Footnote 20 ]
See Va. Declaration of Rights, 1776, § 8 .
[ Footnote 21 ]
See Del.Const., 1792, Art. I, § 7 ; Md. Declaration of Rights, 1776, Art. nineteen ; Pa. Declaration of Rights, 1776, Art. IX ; Va. Declaration of Rights, 1776, § 8. Mass.Const., 1780, Part I, Art. eleven, provided :