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:Ĭoke's Institutes were read in the American Colonies by virtually every student of the law. 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.' 12 To Coke, prolonged detention without trial would have been contrary to the law and custom of England 13 but he also believed that the delay in trial, by itself, would be an improper denial of justice. 9 By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer 10 were visiting the countryside three times a year. 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' 8 but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166). That right has its roots at the very foundation of our English law heritage. We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. 98 (1915) (capias issued eight years after a nolle prosequi with leave was taken, even though the fendant had been available for trial in 1907). 256 (1852) (capias issued immediately after entry of the nolle prosequi with leave), with State v. Perhaps the procedure's 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. The only statutory reference to a nolle prosequi is in § 15-175, General Statutes of North Carolina, 1 which on its face does not apply to the facts of this case. 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. Since the indictment is not discharged by either a nolle prosequi or nolle prosequi with leave, the statute of limitations remains tolled. 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. 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. But the taking of the nolle prosequi does not permanently terminate proceedings on the indictment. 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. 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.
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