Reasons against passing the bill prepared, concerning writs of certiorari

Reasons against passing the bill prepared, concerning writs of certiorari

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REASONS Against paſſing the BILL prepared, concerning Writs of CERTIORARI.

REASONS Against paſſing the BILL prepared, concerning Writs of CERTIORARI.

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IT is alledged in the Bill, that by means of Writs of Certiorari, whereby Indictments, &c. are removed into the Court of Kings-Bench, Offenders eſcape Unproſecuted, and Unpuniſhed, and the King loſeth the Fines which would be impoſed, were not ſuch Indictments removed.

And alſo intended to be Enacted in the ſaid Bill, That no Certiorari ſhall be granted but upon Motion in Court, and the Cauſe for granting thereof, to be ſpecified in the Writ, and the Certiorari ſhall onely be delivered at the Quarter Seſſions of the Peace in open Court, &c.

That all Indictments, &c. removed by Certiorari, ſhall be effectually proſecuted and brought to Trial or Judgment; or otherwiſe determined within the ſpace of two Terms, and within the County Pallatines, within ſix months after the Certiorari returned, or elſe Procedendo's ex Officio & gratis, ſhall be made, and for default of making the Procedendo's; The Maſter of the Office to forfeit for the firſt Offence, forty pounds, and for every other ſuch Offence one hundred pounds.

It is humbly conceived, That the Allegations in the Preamble of this Bill, are grounded upon a miſtake; There being no delay in the proceedings againſt Offenders in the Court of Kings-Bench, proceſs being duly made out, and Offenders more ſpeedily and duly puniſhed then at the Seſſions of Peace, or any Inferiour Court whatſoever: For that forthwith after every Indictment; is removed into the ſaid Court, Proceſs are thereupon duly made out from Term to Term againſt the Offenders, until they are Out-lawed, if they do not appear; If they do apear, they muſt plead the next Term after, or elſe Judgment may be entred againſt them: If they do plead the Proſecutor may carry it to Trial, and be allowed the third part of the Fine if they be Convicted, by vertue of a Privy Seal enrolled in Court. If the Proſecutor doth not try it, the King doth not loſe his Fine, for unleſs the Defendent try it himſelf the next Aſſizes after his plea, or ſubmit to a Fine, Proceſs are duly made out until he be Out-lawed; and after the Outlary is reverſed, he muſt try ſaid Indictment, or otherwiſe legally diſcharge it.

That the King doth not loſe his Fines by reaſon of the removal Indictments; For that more Fines come to the Kings uſe impoſed upon Offenders in the Kings-Bench, upon Indictments removed, then out of all the Inferiour Courts, though not one Indictment of a hundred, is removed into the ſaid Court.

As to what is firſt intended to be Enacted by the ſaid Bill: That no Certiorari ſhall be made, but upon motion made in open Court, and delivered at the Quarter Seſſions of the Peace, &c.

It is Anſwered,
That except Certiorari's be made in the Vacation time (without Motion in Court) Perſons can have little or no benefit by them: For that the Quarter Seſſions of the Peace by Law, are to be kept in the Vacation time, and before Motion can be made in Court (in Term time) for the Writ, they ſhall be adjudged an puniſhed without remedy: And beſides, the great charge and trouble the perſons will be put to in their Motions, &c. will prove a Remedy as bad, if not worſe then the Diſeaſe. As for Example, A man may be Indicted in the beginning of a Summer Vacation, for forcible Entry or Detainer, by one who pretendeth Title to his Houſe or Land, and Turned out of Poſſeſſion, and loſe all his Summer profit of his Land, and can have no remedy before Michaelmas Term. Or if a man be Indicted at a Private Seſſions for a forcible Entry, he ſhall be turned out of poſſeſſion, and have no remedy, unleſs he can have a Certiorarie in the Vacation time: And further, the charge of a Certiorari by Motion in Court upon cauſe ſhewed, will be at leaſt a treble charge to the Subject; Nay probably, ſix times more than now it is.

As to what is next intended to be Enacted (viz.) That all Indictments, &c. ſhall be proſecuted and brought to Trial within two Terms, &c. It is Anſwered, That there are no Aſſizes between Eaſter and Trinity. Term, nor between Michelmas and Hillary Term, for Trial of ſuch Indictments; and Proceſs cannot be made out but from Term to Term; and if a ſpecial Plea be pleaded, it cannot come to Iſſue, to be tried in ſo ſhort a time.

As to the laſt Clauſe in the Bill for the making out Procedendo's ex Officio & gratis. It is Anſwered, That after an Indictment is returned and filed on Record in the Court of Kings-Bench, which is immediately done upon the return, it cannot be ſent back by Procedendo; for Proceſs are thereupon immediately made out, and the party may be Out-lawed, and no Record to warrant it. And if the Clerk of the Crown ſhall make Procedendo's ex Officio & gratis, and be at the charge of ſending Meſſengers into the ſeveral-Counties to the Juſtices, &c. with the Indictments; It may prove a charge greater than the benefit of his Office.

And it is further deſired to be obſerved; That the iſſuing forth of Writ of Certiorari, out of Court of Kings-Bench, for removing of Indictments, &c. from the Seſſions of Peace, and other Inferiour Courts, hath been alwayes accounted an undoubted Right and Liberty, belonging unto the Subject, as their Appeal; and that no Certiorari is made, but by warrant from one of the judges of the ſaid Court; though antiently, and till of late, ſuch Writ were made without any warrants, as commonly as Writ of Latitat, and ſuch like mean proceſs.

That it is the undoubted Prerogative of the King, to ſue and proſecute Offenders in what Court he pleaſes; Eſpecially proper in the Court of Kings-Bench, where his Learned Councel moſt uſually attend, and where onely Writs of Outlary can be made againſt Criminal Offenders, for want of Appearance, &c. And it is to be obſerved, that no Clerk of the Aſſize, or Clerk of the Peace, do make out Proceſs againſt Offenders upon Indictments to Outlary▪ notwithſtanding they do not appear; neither do any of the ſaid Clerks certifie any Records of Outlary, into the Court of Kings-Bench, as by Law they ought to do: Neither can they make out Proceſs out of their own Counties, in caſe the Offenders live or remove into other Counties which frequently happens; but Proceſs out of the Kings-Bench can be made againſt Offenders all the Realm over.

That for want of Certiorari's, The Juſtices of the Peace, may if they pleaſe aſſume an Arbitrary power whereby the people may ſuffer for want of their Appeal.

That the Peers of the Realm, and their Tenants may ſuffer much for want of theſe Writs: For though moſt of the Peers are in the Commiſſions of the Peace, yet they ſeldom appear at the Seſſions: Beſides, their Lands lie diſperſed in ſeveral Counties. The Peers are like more eſpecially to be prejudiced in caſe of forcible Entries, wherein Juſtices of the peace have power to give poſſeſſion of Eſtates without controul, except Certioraries be granted aſwell in the Vacation, as in Term time.

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Title statement

Reasons against passing the bill prepared, concerning writs of certiorari

Edition statement

1693

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Text Creation Partnership,

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2009-10 (EEBO-TCP Phase 1).

ID [DLPS]

A58225

ID [STC]

Wing R473A

ID [STC]

ESTC R14428

ID [EEBO-CITATION]

12648719

ID [OCLC]

ocm 12648719

ID [VID]

65245

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(EEBO-TCP ; phase 1, no. A58225)

Transcribed from: (Early English Books Online ; image set 65245)

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— Reasons against passing the bill prepared, concerning writs of certiorari,

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1 sheet ([1] p.) ; 30 x 38 cm.

s.n.,. [London? :: 1693?]. (Broadside.) (Reproduction of original in Huntington Library.)

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