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<DATE>2014-11-12</DATE>
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<NAME>TCP Staff (Michigan)</NAME>
<RESP>MURP</RESP>
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<ITEM>Proofed and reviewed as part of batch B140728.pdcc.</ITEM>
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<STC T="W">R476</STC>
<BIBNO T="oclc">[ocm]12648699</BIBNO>
<VID>199606</VID>
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<DIV1 TYPE="text">
<PB REF="1">
<HEAD><HI>REASONS</HI> Against pa&s;&s;ing the BILL prepared, concerning Writs of CERTIORARI.</HEAD>
<P>IT is alledged in the Bill, that by means of Writs of <HI>Certiorari,</HI> whereby Indictments, <HI>&amp;c.</HI> are removed into the Court of Kings-Bench, Offen|ders e&s;cape Unpro&s;ecuted, and Unpuni&s;hed, and the King lo&s;eth the Fines which would be impo&s;ed, were not &s;uch Indictments removed.</P>
<P>And al&s;o intended to be Enacted in the &s;aid Bill, That no <HI>Certiorari</HI> &s;hall be granted but upon Motion in Court, and the Cau&s;e for granting thereof, to be &s;pecified in the Writ, and the <HI>Certiorari</HI> &s;hall onely be delivered at the Quarter Se&s;&s;ions of the Peace in open Court, <HI>&amp;c.</HI></P>
<P>That all Indictment, <HI>&amp;c.</HI> removed by <HI>Certiorari,</HI> &s;hall be effectually pro&s;ecuted and brought to Trial or Judgment; or otherwi&s;e determined with|in the &s;pace of two Terms, and within the County Pallatines, within &s;ix months after the <HI>Certiorari</HI> returned, or el&s;e <HI>Procedendo's ex Officio &amp; gratis,</HI> &s;hall be made, and for default of making the <HI>Procedendo's;</HI> The Ma&s;ter of the Office to forfeit for the fir&s;t Offence, forty pounds, and for every other &s;uch Offence one hundred pounds.</P>
<P><HI>It is humbly conceived,</HI> That the Allegations in the Preamble of this Bill, are grounded upon a mi&s;take; There being no delay in the proceedings again&s;t Offenders in the Court of Kings-Bench, proce&s;s being duly made out, and Offenders more &s;peedily and duly puni&s;hed then at the Se&s;&s;ions of Peace, or any Inferiour Court what&s;oever: For that forthwith after every Indictment, is removed into the &s;aid Court, Proce&s;s are thereupon duly made out from Term to Term again&s;t the Offenders, until they are Out-lawed, if they do not appear; If they do appear, they mu&s;t plead the next Term af|ter, or el&s;e Judgment may be entred again&s;t them: If they do plead the Pro&s;ecutor 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 Pro&s;ecutor doth not try it, the King doth not lo&s;e his Fine, for unle&s;s the Defendent try it him&s;elf the next A&s;&s;izes after his plea, or &s;ubmit to a Fine, Proce&s;s are duly made out until he be Out-lawed; and after the Out|lary is rever&s;ed, he mu&s;t try the &s;aid Indictment, or otherwi&s;e legally di&s;charge it.</P>
<P>That the King doth not lo&s;e his Fines by rea&s;on of the removal of Indictments; For that more Fines come to the Kings u&s;e impo&s;ed upon Offen|ders 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 &s;aid Court.</P>
<P><HI>As to what</HI> is fir&s;t intended to be Enacted by the &s;aid Bill: That no <HI>Certiorari</HI> &s;hall be made, but upon motion made in open Court, and delivered at the Quarter Se&s;&s;ions of the Peace, <HI>&amp;c^.</HI></P>
<DIV2 TYPE="part">
<P><HI>It is An&s;wered,</HI></P>
<P><HI>That</HI> except <HI>Certiorari's</HI> be made in the Vacation time (without Motion in Court) Per&s;ons can have little or no benefit by them: For that the Quarter Se&s;&s;ions 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 &s;hall be adjudged and puni&s;hed without remedy: And be&s;ides, the great charge and trouble the per&s;ons will be put to in their Motions, <HI>&amp;c.</HI> will prove a Remedy as bad, if not wor&s;e then the Di&s;ea&s;e. 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 Hou&s;e or Land, and turned out of Po&s;&s;e&s;&s;ion, and lo&s;e all his Summer profit of his Land, and can have no remedy before <HI>Michaelmas</HI> Term. Or if a man be Indicted at a Private Se&s;&s;ions for a forcible Entry, he &s;hall be turned out of po&s;&s;e&s;&s;ion, and have no remedy, unle&s;s he can have a <HI>Certiorarie</HI> in the Vacation time: And further, the charge of a <HI>Certiorari</HI> by Motion in Court upon cau&s;e &s;hewed, will be at lea&s;t a treble charge to the Subject; Nay probably, &s;ix times more than now it is.</P>
<P><HI>As to what is next</HI> intended to be Enacted <HI>(viz.)</HI> That all Indictments, <HI>&amp;c.</HI> &s;hall be pro&s;ecuted and brought to Trial within two Terms, <HI>&amp;c. It is An&s;wered,</HI> That there are no A&s;&s;izes between <HI>Ea&s;ter</HI> and <HI>Trinity</HI>-Term, nor between <HI>Michelmas</HI> and <HI>Hillary</HI> Term, for Trial of &s;uch Indictments; and Proce&s;s cannot be made out but from Term to Term; and if a &s;pecial Plea be pleaded, it cannot come to I&s;&s;ue, to be tried in &s;o &s;hort a time.</P>
<P><HI>As to the la&s;t Clau&s;e</HI> in the Bill for the making out <HI>Procedendo's ex Officio &amp; gratis. It is An&s;wered,</HI> 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 &s;ent back by <HI>Procedendo;</HI> for Proce&s;s 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 &s;hall make <HI>Procedendo's ex Officio &amp; gratis,</HI> and be at the charge of &s;ending Me&s;&s;engers into the &s;everal-Counties to the Ju&s;tices, <HI>&amp;c.</HI> with the Indictments; It may prove a charge greater than the benefit of his Office.</P>
<P><HI>And it is</HI> further de&s;ired to be ob&s;erved; That the i&s;&s;uing forth of Writ of <HI>Certiorari,</HI> out of the Court of Kings-Bench, for removing of Indict|ments, <HI>&amp;c.</HI> from the Se&s;&s;ions 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 <HI>Certiorari</HI> is made, but by warrant from one of the Judges of the &s;aid Court; though antiently, and till of late, &s;uch Writ were made without any warrant, as commonly as Writ of Latitat, and &s;uch like mean proce&s;s.</P>
<P><HI>That it is the undoubted Prerogative of the King,</HI> to &s;ue and pro&s;ecute Offenders in what Court he plea&s;es; E&s;pecially proper in the Court of Kings-Bench, where his Learned Councel mo&s;t u&s;ually attend, and where onely Writs of Outlary can be made again&s;t Criminal Offenders, for want of Ap|pearance, <HI>&amp;c.</HI> And it is to be ob&s;erved, that no Clerk of the A&s;&s;ize, or Clerk of the Peace, do make out Proce&s;s again&s;t Offenders upon Indictments to Outlary&punc; notwith&s;tanding they do not appear; neither do any of the &s;aid Clerks certifie any Records of Outlary, into the Court of Kings-Bench, as by Law they ought to do: Neither can they make out Proce&s;s out of their own Counties, in ca&s;e the Offenders live or remove into other Counties which frequently happens; but Proce&s;s out of the Kings-Bench can be made again&s;t Offenders all the Realm over.</P>
<P><HI>That for want of Certiorari's,</HI> The Ju&s;tices of the Peace, may if they plea&s;e a&s;&s;ume an Arbitrary power whereby the people may &s;uffer for want of their Appeal.</P>
<P><HI>That the Peers of the Realm,</HI> and their Tenants may &s;uffer much for want of the&s;e Writs: For though mo&s;t of the Peers are in the Commi&s;&s;ions of the Peace, yet they &s;eldom appear at the Se&s;&s;ions: Be&s;ides, their Lands lie di&s;per&s;ed in &s;everal Counties. The Peers are like more e&s;pecially to be preju|diced in ca&s;e of forcible Entries, wherein Ju&s;tices of the peace have power to give po&s;&s;e&s;&s;ion of E&s;tates without controul, except <HI>Certioraries</HI> be grant|ed a&s;well in the Vacation, as in Term time.</P>
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