list of causes: if, however, the proceedings be removed from the Central Criminal Court, or from the Middlesex or London Sessions, the cause will be tried in town, either at bar or at the sittings after term.

This writ, which is awarded during term by the Court of Queen's Bench, and in vacation by any one of the superior judges', may be demanded by the Attorney-General in all cases where the right of the Crown is in question, whether the application be made by him ostensibly on behalf of the prosecutor or defendant 2: in other cases, the court or judge will exercise a discretionary power. But prosecutors may always obtain the writ, whatever the nature of the indictment may be3, provided they can show, on affidavit, some satisfactory reason for making the application.

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Defendants, however, are not entitled to equal privileges ; since indictments for certain offences, such as for keeping disorderly houses", for obtaining money or goods by false pretences, or for not repairing bridges 7, in cases where the inhabitants of the county are charged with the repair, cannot be removed by them from the court where the bills were found. Independently of these offences, for the strange selection of which by the legislature it would be impossible to assign any sensible reason, defendants are placed on the same footing as prosecutors, excepting only that the latter, on obtaining the writ, are fettered by no terms, while the former, unless in custody for want of bail, must first enter into recognizances, in such sum, and with such sureties, as the court or judge shall order, to appear and plead in the Court of Queen's Bench, and, at their own costs, to cause the issue to be tried at the next assizes, if the proceedings be removed from some country court, or in the next term, or at the sittings after such term, or at such other time as the court shall appoint, in the event of its being a town cause;

1 5 & 6 W. 4. c. 33. s. 1.; and 1 & 2 Vict. c. 45. s. 1.

2 R. v. Clace, 4 Burr. 2458.

See R. v. Davies, 5 T. R. 626.; R. v. Justices of Cumberland, 6 T. R. 194., 3 B. & P. 354., S. C. in error; R. v. Boultbee, 4 A. & E. 198.; R. v. Allen, 15 East, 341.; R. v. Spencer, 9 A. & E. 485.

4 5 & 6 W. 4. c. 33. s. 1.

5 25 G. 2. c. 36. s. 11.

7 1 Ann. stat. 1. c. 18. s. 5.

6 7 & 8 G. 4. c. 29. s. 53.

8 R. v. Hamworth, 2 Stra. 900.

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and further to give the prosecutor or his attorney1 notice of trial, and, in case of conviction, to pay such costs to the prosecutor as the court shall assess.2 If the defendant be in custody, he must be detained there until such recognizances are entered into, or until he be discharged by due course of law.3 Pausing here, the first incongruity, which cannot fail to strike the observer, is the invidious distinction which prevails in favour of the Crown. The broad ground, which alone justifies the removal of an indictment by certiorari, is that a satisfactory trial cannot be obtained in the inferior court. If this be the case, every private person, whether prosecutor or defendant, should be entitled to demand a trial elsewhere: if this be not the case, why should the AttorneyGeneral, on behalf of the Crown, be permitted to take a step productive alike of vexatious delays and ruinous expense? The defendant, in criminal proceedings, must pay his own costs, even though successful; he may therefore well complain of any privilege, which, being beneficial neither to the Crown nor the public, may, in bad times, become an engine of cruel oppression, and, even at the present day, must materially tend to harass and impoverish him. Nor is the defendant the less likely to feel, with acuteness, the injustice of this privilege, when he reflects that whatever causes may cooperate to render it impossible that his case should be fairly heard in the court below, he cannot, unless he be actually in custody, remove the proceedings into the Queen's Bench, without previously undertaking to cause the issue to be tried at his own costs—and this too, though he be entirely innocent of the offence which is imputed to him.

Another rule which, we conceive, requires amendment, is that by which defendants, charged with certain misdemeanors, are deprived of all power of having their conduct investigated before any other tribunal, than the court where the prosecutor has chosen to prefer the indictment. Why a party charged with obtaining money by false pretences

16 & 7 Vict. c. 20. s. 17.

2 5 & 6 W. & M. c. 11. ss. 2, 3. ; 8 & 9 W. 3. c. 33. ; 5 & 6 W. 4. c. 33. s. 2.; R. v. Hawdon, 11 A. & E. 143.; R. v. Hawdon, 1 Q. B. 464.

3 5 & 6 W. 4. c. 33. s. 2.

4 So called by Williams J. in R. v. Boultbee, 4 A. & E. 507.

is to be debarred from a right to which a person who has embezzled the same amount is entitled, or why a fair trial is conclusively to be presumed, if the question before the sessions relate to the keeping of a gaming-house or a brothel, or to the non-repair of a bridge, but not, if it concern the omission to repair a highway, or the commission of any other nuisance, are questions to which no satisfactory answer can be given. The distinction is founded neither in sense nor in justice, and should no longer be permitted to prevail.

A more serious evil still remains to be noticed. A prosecutor may, as we have seen, obtain a writ to remove his indictment into the Court of Queen's Bench without the imposition of any terms; and the moment that the writ is issued he is at liberty to proceed, or not, with the trial as he shall think fit; while his witnesses, who were bound over to appear in the inferior court, are released from their obligation. The practical result of this state of the law is too frequently the following: the prosecutor is a mercenary man; he prefers some disgraceful charge, which for the present argument may be true or false, against a person of station; a bill is found, and the proceedings are removed into the Queen's Bench; intimation is then given to the defendant that, on the payment of a certain sum, no further steps shall be taken; the money is paid, and we hear no more of the matter. Thus, if the defendant be guilty, a flagrant violation of the law is shamelessly compounded; if he be innocent, unless he be a person of strong nerve, he is grossly pillaged. Again, the prosecutor may be a person of malignant disposition, determined, at all hazards, to ruin some humble object of his hatred. A specious falsehood is first told to the grand jury, either by the prosecutor himself, or by profligate witnesses, whom he can readily suborn, since they know full well that they practically incur no risk of an indictment for perjury, whatever statements they may make before that inquest; the jury find a true bill, and the indictment, as in the last case, is removed; the prosecutor refrains from proceeding to trial; the defendant, feeling that his character is compromised so long as the charge remains undetermined, is driven, at a ruinous expense, to make up the record, and to enter it

at the assizes. The case is called on; no prosecutor, no witnesses appear; the defendant is acquitted, and returns to his home a ruined, and still a suspected man.

We are aware that these abuses are not now of such frequent occurrence as they formerly were, because prosecutors, like defendants, are, by a statute of the last reign', obliged to found their application for a writ on some plausible reason; and, moreover, the judges of the Queen's Bench, possibly in consequence of the excessive press of business which devolves upon them, have discountenanced, as much as possible, applications of this nature: still we are firmly persuaded that, even at the present day, they occasionally, if not constantly, occur; and we confidently appeal to persons practically acquainted with the matter to support us in this assertion. If these writs of certiorari in criminal proceedings are still to be retained, and respecting their abolition we shall immediately offer some suggestions, we consider it indispensable that they shall only be granted to prosecutors, on the condition of their being bound, first to proceed with the trial at the earliest opportunity, and next, in the event of an acquittal, to pay such extra costs as, in consequence of the removal, the defendant has been compelled to incur; and further we deem it essential to justice that the witnesses should not be discharged from their obligation to appear and testify at the trial.

Having said thus much respecting the anomalies which exist in the practice of obtaining writs of certiorari, the next question which we propose to consider is, whether it be not both possible and expedient to abolish the writ in criminal proceedings. We have seen that the affidavit, on which the application for a certiorari is moved, must disclose some reasonable grounds for making it. These, in some cases, are defined by statute, as, for instance, if it be sought to remove from the sessions an indictment for the non-repair of a highway, it will be sufficient to show, by affidavit, that the right of the defendants to repair the highway will come in question 2: for if such be the case, it can scarcely be expected that a tribunal,

1 5 & 6 W. 4. c. 33. s. 1.

5 W. & M. c. 11. s. 6. ; 5 & 6 W. 4. c. 50. s. 95.; Corner's Crown-Office Forms, p. 32.

composed of country gentlemen, would be competent to decide a question, which must often depend on some abstruse principle of law. In other cases, it is generally stated either that difficult points of law are likely to arise; that the question is one fit to be tried by a special jury; that it will be necessary to have a view of the place in question; that local prejudices exist either against or in favour of the accused; that the circumstances are intricate; that it would be derogatory to the dignity of the defendant to stand at the bar of a criminal court, or that he could not, in that court, obtain the assistance of counsel of sufficient eminence. 1 1 It is not here meant that the court will certainly grant the rule, on an affidavit disclosing any one of these grounds separately; neither do we intend to say that it is necessary to state them all: but we cite these reasons, as being those which, either separately or collectively, are usually presented to the consideration of the court, and as affording a fair insight into the objects which the parties have in view in making the application.

Now, of these grounds, it is obvious that the last two are entitled to no sort of consideration. The former rests on the ridiculous assumption that disgrace attaches, not to the proof of the charge, but to the place where it is proved: the latter is altogether fallacious, since the ablest advocate in Westminster Hall will appear in any court, not indeed without a special retainer, but still at a less cost to the client 2, than will of necessity be incurred, should the proceedings be removed into the Queen's Bench, and the same counsel be there employed in conducting the defence. The objection to the inferior court, which is founded on the existence of local prejudices, is one which even now is of rare occurrence, and which, if stipendiary magistrates were appointed to preside at the sessions, could scarcely exist. If, however, on an indictment for election bribery, or on some other remarkable occasion, local party-feeling was found to prevail to such an extent, that a fair trial could not be had, either at the sessions or assizes, an obvious and simple remedy for this

1 See form of affidavit in Corner's Crown Office, p. 31.

Sed quære as to the expense. — ED.

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