And then proceed,— And this you, or any of you, are by no means to omit, under the penalty upon each of you of 100l. Witness at the day of year of our reign. in the aforesaid, Y. Z. Clerk of the Peace. If the party subpoenaed is supposed to be in possession Duces tecum. of any documents necessary to the elucidation of the matter in controversy, a special clause, called a duces tecum, is to be inserted, requiring him to bring such documents with him. This subpoena is made out by the Clerk of the Peace, and each of the witnesses must be personally served, either with a copy, which is now most usual, or with a notice in the following form,— To Mr. A. B. By virtue of his Majesty's writ of subpoena to you directed, and herewith shewn unto you, you are personally to be and appear before his Majesty's justices, &c. (pursuing the form of the subpoena, as far as the words in a case of ― - ;') and this you are not to omit, under the penalty of 1001. Dated this in the the reign &c. day of year of The form of a writ of habeas corpus ad testificandum to give evidence at the Court of Quarter Session. George the Third, &c. to the Sheriff of greeting: We command you, that you have the body of A B. in our prison under your custody, as it is said detained under safe and secure conduct; by whatsoever means the said A. B. may be called on the same, before our justices assigned, &c. of the General Quarter Session of the Peace, to be holden at in and for the said county, on, &c. then and there to testify the truth, and give evidence on our behalf before the grand inquest, touching a bill of indictment to be preferred against, &c. &c. (as the case may be) and immediately after the said A. B. shall have then and there given his testimony before our said justices, to return him the said A. B. to our said prison under safe and secure conduct, and have you then there this writ. Witness in the year of our reign, &c. &c. This is all that is necessary to be advanced, in this state of the proceedings before the Court of Quarter Session, respecting the attendance of witnesses; especially as the subject resolves itself into other points of consideration in a subsequent page. The last subject of inquiry under this division is, what privileges or immunities the protection of the court confers upon suitors of every description, as auxiliary to the advancement of public justice. And it is laid down, that all persons may freely attend All suitors at the sessions, for the advancement of public justice, protected. and for the service of the King; and to this end, they are, Privilege inter as it were, invited thither by a certain freedom of access, and by protection from common arrest in civil actions, a privilege without which justice would be greatly hindered; so that if a man come voluntarily to the sessions, either to prefer a bill of indictment, or to give information against another, or to tender a fine upon an indictment. touching himself, or come compelled to make appearance for saving his recognizance, and be arrested in his coming thither, or during his tarrying there, or on his return, it seems that upon examination of the matter upon oath, he shall be discharged thereof by any judge of the court whence the process issued. (a) And all witnesses attending bonâ fide to give evidence are privileged from arrest in like manner, even when they have attended on application without a subpœna.(b) In order to advance the purposes of justice, the courts preted liberally. have always inclined to give a liberal construction to this privilege. Thus a man attending from day to day in the expectation of the trial of his cause was held to be privileged from arrest while waiting for that purpose at a coffee-house in the vicinity of the court before the actual day of trial. (c) Thus, where a witness having attended a trial at Winchester, which concluded on Friday about four in the afternoon, was arrested on Saturday at seven in the evening, as she was returning in a coach to Portsmouth, the court held that she was entitled to her discharge, as a little deviation or loitering would not annul her protection. (d) Thus, where a party, attending his cause at the sittings, though it was postponed early in the day, remained in court till five in the afternoon, and then went with his attorney and witnesses to dine at a tavern, where he was arrested during dinner, the court held the privilege still subsisting. (e) There is, indeed, one case in the year books (f) where a man arrested in a town forty miles out of his road, was allowed his privilege, for "perhaps," it was said, "he went to buy a horse or (a) Com. Dig. Privilege (A 1). By the annual mutiny act there is a special provision for witnesses being privileged from arrest, who are summoned to attend upon courts martial, "in like manner as witnesses attending any of his Majesty's courts of law are privileged." (b) Per Lord Kenyon in Arding v. Flower, 8 T. R. 536; Meekins v. Smith, 1 Hen. Bla. 636. (c) Childerston v. Barret, 11 East, R. 439. other necessaries for his journey." The privilege, however, must have a reasonable though a liberal construction; and, consequently, ought not to be allowed, after a convenient time has clearly expired, or where the party is obviously using his alleged purpose of attending the court as mere colour. This right of protecting its suitors is incident to every court of record. In the superior courts, the course is to make summary application for the discharge of the party arrested, on affidavit, upon which he may be brought into court, and there examined on oath touching his privilege; and a judge at Nisi Prius may order his discharge. (g) It seems doubtful, however, whether the Court of Quarter Sessions may exercise a similar power, except where a witness is arrested in face of the court; or whether they can do more than postpone the trial until the witness shall be discharged by the order of the court from which the process issued. The tendency of modern decisions has been to extend rather than abridge the privilege of witnesses.(h) § 10. OF PLEADERS. Every man has a natural right to plead his own cause, s. 10. Pleaders. of which no municipal regulation can deprive him without manifest injustice. All persons, therefore, accused of crime or misdemeanor, and all parties in convictions, informations, or appeals, have a right to address the court or jury, as the case may be, for themselves; to examine witnesses in their own behalf; or to cross-examine the witnesses produced against them. In all these cases it is a mere question of discretion, whether a party will conduct his case in person, or entrust it to such advocates as the practice of the court may allow him. But an indictment, being preferred at the suit of the crown, although at the instance of an individual, is not considered as a proceeding at the suit of the party, so as to entitle him to conduct the case in court further than to tender his own evidence as a witness, and to offer suggestions to the chairman. (i) Where, therefore, no advocate appears Solomon v. Underhill, 1 Campb. 229. (h) See Spence v. Steward, 3 East, R. 89; and Randall v. Gurney, 3 B. and A. 566; 7 Price, 699. (i) This was distinctly laid down by Abbot, C. J., in the King v. Stoddart, tried at Guildhall, Oct. 16, 1819. In that case, which was an indictment for libel, the prosecutor, Mr. H. Hunt, appeared in person; when the Lord Chief Justice made the following obser G Advocates at sessions. for the prosecution, no address is made to the jury, but the witnesses are examined by the chairman. The Advocates at sessions, who, by inherent right, or by the practice of the court, are entitled to take upon them the causes of others, and to prosecute for the crown, are Barristers and Attornies. At sessions, where a sufficient number of Barristers attend, it is usual to give them sole audience, and the Attornies are consequently not heard in person. At sessions, where the bar do not attend, as in most boroughs and cities, it is usual to hear the Attornies as Advocates; and though it be doubted whether, in strictness, they are entitled to prosecute indictments, it is customary, and certainly convenient, to allow them that privilege. In cases where the bar have not been accustomed to attend, but two or more Barristers wish to do so, it is usual for them to intimate may vations as to the course to be pursued:-" If it be your intention to address the jury, it is a course which you will not be permitted to pursue. It has been determined by all the judges of the Court of King's Bench, and that determination has been publicly expressed on more than one occasion, together with the concurrence of many of the other judges, that a prosecution by indictment is not, in point of law, the suit of an individual. If any individual seeks redresspersonal redress for personal injury, the course that he is to pursue is to bring his action for damages. If, instead of electing to bring his action for the redress of a personal injury, he thinks fit to put the law in motion in the name of the King, for the sake of public justice, it is not his suit, but it is the suit of his Majesty. Where a person, therefore, chooses to proceed by indictment, he has no right to address the jury, unless he is a gentleman at the bar. That opinion has been solemnly pronounced by all the judges of the Court of King's Bench. We have at every assizes, and under every commission of gaol-delivery in London, at every Court of Quarter Session holden throughout the country, a great number of prosecutions, instituted certainly by private individuals, in which the name of his Majesty is used; but in none of them is it ever thought that the person prosecuting has a right to address the jury. The course taken on every occasion of a criminal prosecution is, where there are depositions, that the judge refers to them, and examines the witnesses one by one according to those depositions. Where there are no depositions, as in cases of this description, it has been usual for the judge to consult the person prosecuting as to the manner of bringing his case before the court, and as to the witnesses proper to be examined. That is the way in which justice is administered in such cases, and that is the course of proceeding I mean to adopt on the present occasion. Mr. Hunt will communicate with me, and give me the names of his witnesses. If he is disposed to proceed in that way it shall be done. This is the only course I shall allow; and if you do not choose to have justice administered in your case according to the ordinary and established rules and opinions of the judges of the land, the record must be withdrawn." their desire to the chairman, and request that they may have pre-audience; and, if this request be granted, the Attornies cannot be afterwards heard in their presence, unless they should all be retained on one side. How far a Barrister may, merely as such, insist, without the sanction of the Bench, on his right of pre-audience in courts of sessions where Attornies alone have been accustomed to practise, would be a question of some difficulty; but is very unlikely, it may be hoped, to be raised in practice. All Barristers may attend and practise at sessions; but Barristers. it is not usual for any to do so on other than their own circuits, or on special retainers. King's Counsel and Serjeants do not usually appear at sessions, it being considered infra dignitatem, unless by special retainer; but to Barristers without the bar there is no exception, so that the Counsel be not a member of the court, as justice; or officer of the court, as clerk of the peace. The practice of Attornies at sessions is either in the Attornies. joint characters of Advocates and Attornies, where the bar do not attend, or simply as Attornies, advising and assisting their clients, and instructing counsel. In general, every person regularly admitted and enrolled as an Attorney of one of the courts at Westminster is entitled to practise at the sessions; unless he be clerk of the peace, or his deputy, or under-sheriff, or his deputy, in which case, if he shall act as a Solicitor, Attorney, or Agent, in any General or Quarter Session of the Peace of the county or place where he shall execute his office, he will forfeit 501. (j) The right to practise at the sessions is, however, strictly confined to those who have been admitted and enrolled as Attornies. Thus it is enacted, that "no person shall act as a Solicitor, Attorney, or Agent, or sue out any process at any General or Quarter Session of the Peace, without being admitted and enrolled according to law, on pain to forfeit 50l. to him that shall sue within twelve months, with treble costs ;" and if an Attorney or Solicitor shall permit any person not admitted and enrolled, to make use of his name in such session, he shall be liable to a like penalty. (k) To entitle a party to admission as an Attorney, he must be bound, by contract in writing, to serve as a clerk for the space of five years to an Attorney duly sworn and |