Petitioner's trial on a North Carolina criminal trespass
indictment ended with a declaration of a mistrial when the jury
failed to reach a verdict. After the case had been postponed for
two terms, petitioner filed a motion with the trial court in which
he petitioned the court to ascertain when the State intended to
bring him to trial. While this motion was being considered, the
State's prosecutor moved for permission to take a "
nolle
prosequi with leave," a procedural device whereby the accused
is discharged from custody but remains subject to prosecution at
any time in the future at the discretion 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 speedy
trial, the trial court, without stated justification, granted the
prosecutor's motion. On appeal, the State Supreme Court affirmed
the trial court's action, holding that, while a defendant has a
right to a speedy trial if there is to be a trial, that right does
not require the State to prosecute if the prosecutor, in his
discretion and with the court's approval, elects to take a
nolle prosequi.
Held: By indefinitely postponing prosecution on the
indictment over petitioner's objection and without stated
justification, the State denied petitioner the right to a speedy
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.
Page 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 custody. It is presented in the context of an
application of an unusual North Carolina criminal procedural device
known as the "
nolle prosequi with leave."
Under North Carolina criminal procedure, when the prosecuting
attorney of a county, denominated the solicitor, determines that he
does not desire to proceed further with a prosecution, he may take
a
nolle prosequi, thereby declaring "that he will not, at
that time, prosecute the suit further. Its effect 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 taking of the
nolle prosequi does not permanently terminate proceedings
on the indictment. On the contrary,
"When a
nolle prosequi is entered, the case may be
restored to the trial docket 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 case "with leave," the consent required
to reinstate the prosecution at a future date is implied in the
order, "and the solicitor (without further order) may have the case
restored for trial."
Ibid. Since the indictment is not
discharged by either a
nolle prosequi or a
nolle
prosequi with leave, the statute of limitations remains
tolled.
State v. Williams, 151 N.C. 660, 65 S.E. 908
(109).
Page 386 U. S. 215
Although entry of a
nolle prosequi is said to be
"usually and properly left to the discretion of the Solicitor,"
State v. Moody, 69 N.C. 529, 531 (1873), early decisions
indicate that the State was once aware that the trial judge would
have to exercise control over the procedure 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 case, 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 go 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 language from the opinion below in support of
the judgment.
Whether this procedure is presently sustained by the North
Carolina courts under a statute or under their conception of the
common law procedure is not indicated by the opinion of the court,
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. Perhaps the procedure's
Page 386 U. S. 216
genesis lies in early nineteenth century decisions of the
State's Supreme Court approving the use of a
nolle
prosequi with leave to reinstate the indictment, although
those early applications of the procedure were quite different from
those of the period following enactment 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
entry 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 procedure 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 trial, over his
objection, throughout the unlimited period in which the solicitor
may restore the case to the calendar. During that period, there is
no means by which he can obtain a dismissal or have the case
restored to the calendar for trial. [
Footnote 2] In spite of this result, both the Supreme
Court and the Attorney General state as a fact, and rely upon it
for affirmance in this case, that this procedure, as applied to the
petitioner, placed no limitations upon him, and was in no way
violative of his rights. With this we cannot agree
This procedure was applied to the petitioner in the following
circumstances:
Page 386 U. S. 217
On February 24, 1964, petitioner was indicted by the grand jury
of Orange County for the crime of criminal trespass, a misdemeanor
punishable by fine and imprisonment in an amount and duration
determined by the court in the exercise of its discretion.
[
Footnote 3] The bill 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 judge declared a mistrial and ordered the case
continued for the term.
Several 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 session, petitioner, through his attorney,
opposed the entry of such an order in open 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 spite of petitioner's opposition, the
court indicated that it would approve entry of a
nolle
prosequi with leave if requested to do so by the solicitor.
But the solicitor
Page 386 U. S. 218
declined to make a motion for a
nolle prosequi with
leave. Instead, he filed a motion with the court to continue the
case for yet another term, which motion was granted.
The calendar for the August, 1965, Criminal Session of the court
did not list Klopfer's case for trial. To ascertain the status of
his case, petitioner 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 as soon as is
reasonably possible."
Noting that some 18 months had elapsed since the indictment,
petitioner, a professor of zoology at Duke University, contended
that the pendency of the indictment greatly interfered with his
professional activities and with his travel here and abroad.
"Wherefore," the motion concluded,
"the defendant . . . petitions the Court that the Court, in the
exercise of its general supervisory jurisdiction, inquire into the
trial status of the charge pending against the defendant and . . .
ascertain the intention 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 status
of petitioner's case in open court on Monday, August 9, 1965, at
which time the solicitor moved the court that the State be
permitted to take a
nolle prosequi with leave. Even though
no justification for the proposed entry was offered by the State,
and, in spite of petitioner's objection to the order, the court
granted the State's motion.
On appeal to the Supreme Court of North Carolina, petitioner
contended that the entry of the
nolle prosequi with leave
order deprived him of his right to a speedy 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 leave did not permanently discharge the indictment, it
nevertheless affirmed. Its opinion concludes:
"Without question, a defendant has the right to a speedy trial
if there is to be a trial. However, we do not understand the
defendant has the right to compel the State to prosecute him if the
state's prosecutor, in his discretion and with the court's
approval, 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 effort."
"In this case, the solicitor and the court, in entering the
nolle prosequi with leave, followed the customary
procedure 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 conclusion -- that the right
to a speedy trial does not afford affirmative protection against an
unjustified postponement of trial for an accused discharged from
custody -- has been explicitly rejected by every other state court
which has considered the question. [
Footnote 4] That conclusion has also 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, too, believe that the position taken by the court below 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 scorn and deprive him of employment, and
almost certainly will force curtailment of his speech, associations
and participation in unpopular causes. By indefinitely prolonging
this oppression, as 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 right to
a speedy trial 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 apply to the
States through the Fourteenth Amendment, that question has been
settled as to some of them in the recent 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 various 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
no longer be regarded as the law. We hold that petitioner was
entitled to be tried in accordance with the protection of the
confrontation guarantee of the Sixth Amendment, and that that
guarantee, like the right 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 encroachment."
"
Malloy v. Hogan, supra, 378 U.S. at
378 U. S.
10. [
Footnote
7]"
We hold here that the right to a speedy trial is as fundamental
as any of the rights secured by the Sixth Amendment. That right has
its roots at the very foundation of our English law heritage. 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 man either justice or
right"; [
Footnote 8] but
evidence 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
century, justices, armed with commissions of gaol delivery 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 long detained, but, at
their next coming, have given the prisoner full and speedy justice,
. . . without detaining him long in prison. [
Footnote 12]"
To Coke, prolonged detention without trial would have been
contrary to the law and custom of England; [
Footnote 13] but he also believed that the delay
in trial, 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 man, we will not deny or defer to any man
either justice or right" had the following effect:
"And therefore, every subject of this realme, for injury done to
him
in bonis, terris, vel persona, by any other subject,
be he ecclesiasticall, or temporall, free, or bond, 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 speedily without
delay. [
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
time he studied law (1762-1767), "
Coke Lyttleton was the
universal elementary book of law students." [
Footnote 16] And to John Rutledge of South
Carolina, the Institutes seemed "to be almost 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 surprising that, when George Mason drafted the first of
the colonial bills of rights, [
Footnote 19] he set forth a principle of Magna Carta,
using phraseology similar to that of Coke's explication: "[I]n all
capital or criminal prosecutions," the Virginia Declaration of
Rights of 1776 provided, "a man hath a right . . . to a speedy
trial. . . ." [
Footnote 20]
That this right 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
as well as by its prominent position in the Sixth Amendment.
Today, each of the 50 States guarantees the right to a speedy trial
to its citizens.
The history of the right to a speedy trial and its reception in
this country clearly establish that it is one of the most basic
rights preserved by our Constitution.
For the reasons stated above, the judgment must be reversed and
remanded for proceedings not inconsistent with the opinion of the
Court.
It is so ordered.
MR. JUSTICE STEWART concurs in the result.
MR. JUSTICE HARLAN, concurring in the result.
While I entirely agree with the result reached by the Court, I
am unable to subscribe to the constitutional premises upon which
that result is based -- quite evidently the viewpoint that the
Fourteenth Amendment "incorporates" or "absorbs," as such, all or
some of the specific provisions of the Bill of Rights. I do not
believe that this is sound constitutional doctrine.
See my
opinion concurring in the result in
Pointer v. Texas,
380 U. S. 400,
380 U. S.
408.
I would rest decision of this case not on the "speedy trial"
provision of the Sixth Amendment, but on the ground that this
unusual North Carolina procedure,
Page 386 U. S. 227
which in effect allows state prosecuting officials to put a
person under the cloud of an unliquidated criminal charge for an
indeterminate period, violates the requirement of fundamental
fairness assured by the Due Process Clause of the Fourteenth
Amendment. To support that conclusion, I need only refer to the
traditional concepts of due process 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 good
cause shown shall order otherwise. The clerk of the superior court
shall issue a capias for the arrest of any defendant named in any
criminal action in which a nolle prosequi has been entered when he
has reasonable ground 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 originally enacted in 1905.
[
Footnote 2]
On oral argument, counsel for the State informed the Court that
a North Carolina indictment could be quashed only if it contained a
vitiating defect.
See also N.C.Gen. Stat. §§ 15-15, 15-155
(1965).
[
Footnote 3]
N.C.Gen.Stat. § 14-134 (Supp. 1965). Although not expressly
limited by statute, 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 cruel or unusual
punishments inflicted").
See State v. Driver, 7 N.C. 423
(1978). Decisions of the state courts indicate that imprisonment
for up to two years would not be an "unusual punishment."
See,
e.g., State v. Farrington, 141 N.C. 44, 53 S.E. 954 (1906).
The constitutional limitation upon the amount of the fine 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 also 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 right to a speedy trial may be violated by undue delay
in bringing a prisoner confined within the State to trial, even
though he is not held in custody under the indictment).
Dicta in decisions of the Colorado, Iowa, and Utah courts
clearly indicate that these States would also hold that the speedy
trial right would protect a defendant in petitioner's position:
see In re 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 speedy trial" is only applicable to a man 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 notice of the pendency of a complaint for eight years
constituted a denial of due process. Moreover, Rule 316 of the
Commonwealth's rules of criminal procedure authorizes the court to
dismiss a case which has not been brought to trial within a
"reasonable time."
By rule or legislation in 17 States, any defendant, whether at
large or in custody, 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 proscribe 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 implication);
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 re 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 leave, but only if the defendant cannot be
brought before the court.
See Ala.Code, Tit. 15, § 251
(Supp. 1965). Thus, this procedure is similar 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
trial docket with leave to reinstate at some indefinite future
date. But in each, use of the procedure has been limited to
situations in which the defendant cannot 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 only
after verdict and then only with the consent of the accused);
Gordon v. State, 127 Miss. 396, 90 So. 95 (1921) (consent
of defendant necessary);
Rush v. State, 254 Miss. 641,
182 So. 2d
214 (1966) (but not if defendant was in a mental institution at
the time 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 oath, if the justices are
not about to come speedily enough into the country where they have
been taken, let the sheriffs send word to the nearest justice 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 gaol delivery is set forth in
Goebel, Cases and Materials on the Development of Legal
Institutions 53 (7th rev.1946):
"The lord king to his beloved and faithful Stephen de Segrave
and William Fitz Warin, greeting. Know that we have appointed you
justices to deliver our gaol at Gloucester, in accordance with the
custom of our realm, 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 twelfth year of our reign
[Monday, May 22, 1228], to deliver the aforementioned gaol, as
aforesaid, for we have ordered our sheriff of Gloucestershire that,
at the aforesaid time and place, he cause to come before you all
the prisoners in the aforesaid gaol 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 grand jury of named crimes, from
treasons to the pettiest offence, as to all particulars and to hear
and determine these according to the law and custom of the
realm."
Id. at 54.
[
Footnote 11]
Id. at 54.
[
Footnote 12]
Coke, op. cit.
supra, n., at 43.
[
Footnote 13]
See ibid.
[
Footnote 14]
Id. at 55. "Hereby it appeareth," Coke stated in the
next paragraph,
"that justice must have three qualities, it must be
libera,
quia nihil iniquius venali justitia; plena, quia justitia non debet
claudicare; et celeris, quia dilatio est quaedam negatio, and
then it is both justice and right."
Later in the explication of Chapter 29, Coke wrote that, in
conformity with the promise 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. supra, n 15, at 174.
[
Footnote 17]
Quoted in Bowen, The Lion and the Throne 514 (1956).
[
Footnote 18]
See Coke,
op. cit. supra, n 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. XIX; Pa. Declaration of Rights, 1776, Art. IX;
Va. Declaration of Rights, 1776, § 8. Mass.Const., 1780, Part I,
Art. XI, provided:
"Every subject of the commonwealth ought to find a certain
remedy, by having recourse to the laws, for all injuries or wrongs
which he may receive in his person, property, or character. He
ought to obtain right and justice freely, and without being obliged
to purchase it; completely, and without any denial; promptly, and
without delay; conformably to the laws."
This has been construed as guaranteeing to all citizens the
right to a speedy trial.
See Commonwealth v. Hanley, 337
Mass. 384,
149
N.E.2d 608 (1958). A similar provision was included in the New
Hampshire Constitution of 1784, Part I, Art. XIV.
Kentucky, Tennessee, and Vermont, the three States which were
admitted to the Union during the eighteenth century, specifically
guaranteed the right to a speedy trial in their constitutions.
See Vt.Const. 1786, c. I, Art. XIV; Ky.Const. 1792, Art.
XII, § 10; Tenn.Const. 1796, Art. XI, § 9.