Where the defendant pleaded not guilty, the bill must be sent before the grand jury in the ordinary course; but as the defendant had pleaded not guilty to it once, it should be rendered unnecessary, after the bill had been found, to take his plea again.

In most counties it is conceived that two or more justices meet in petty sessions once a week, or at least once a fortnight, at the place where the quarter sessions are holden; and as any two justices are competent to hold a sessions for the trial of prisoners, the justices so meeting in petty sessions might very well hold a sessions for the taking pleas of prisoners, and the quarter or general sessions might very properly be adjourned for that purpose to the days when the petty sessions are holden. In order to effect this object, wherever any prisoner was committed for trial to the sessions, the clerk to the justices should be required forthwith to transmit the depositions to the clerk of the peace, who should thereupon prepare an indictment, and the prisoners should be brought up and arraigned at the adjourned sessions, and any of them that pleaded guilty should either be sentenced then or remanded and sentenced at the next quarter or general sessions. The advantages of this course would be that witnesses would never have to attend at the sessions in such cases, and the costs would be limited to the, costs of attending before the committing justices.

If this suggestion should seem unnecessary after the Bill now pending for summary conviction of prisoners has passed, it may be observed that it is yet uncertain how that Bill may work. The manner in which the Juvenile Offenders Act has worked does not promise a certainty of success. At all events, if a power of taking pleas of guilty were given to the sessions in the manner above proposed, they might exercise their discretion as to the adjournment of the sessions for that purpose.

Of the Grand Jury being attended by an Officer to watch the Examination of the Witnesses, &c. ⁽¹⁾

There is no institution which, perhaps, has been more generally assailed of late years, and, as it should seem, more undeservedly, than that of the grand jury, and few, if any, allowances have been made for the position in which it is really placed, and which unavoidably subjects it to great difficulties in the discharge of its very important duties. Generally speaking, a case is presented to the grand jury simply by the indictment, which contains the charge, or, perhaps, it ought rather to be said in many cases multiplication of charge, to be investigated, and the names of the witnesses to be examined in support of it. The Court is usually furnished with a short abstract of the indictment in plain terms, specifying what the charge is; but the grand jury-probably at the sessions, containing no one at all acquainted with law upon it-has to search the indictment through to discover what the charge really is. Again, the grand jury is in total ignorance of the nature of the case in general, or of the evidence which each witness can give; and the result may well be stated in the words of Mr. Wm. Adams, a magistrate for the county of Herts (8 Rep. Rev. C. L. C„ p. 342)-

" First, there is no check upon a corrupt witness as to the evidence he may give before a grand jury, even should it be in direct contradiction to his evidence before the magistrate. Secondly, the grand jury have no data from which they can examine a witness or educe his evidence. Thirdly, very many honest witnesses, especially among the agricultural classes, from being asked few or no questions, and from timidity, come away from the grand jury without giving half the information they are in possession of".

There can be no doubt that these are the three principal causes why bills of indictment are improperly ignored, and equally little that the great majority of such cases arises from the two last causes. And when these things are candidly considered, our wonder ought rather to be that the grand jury works so well as it does, than that erroneous determinations are sometimes made by it.

The remedies for this state of things are easy. Let an officer attend the grand jury with the depositions, and let it be his duty to explain the charge in the indictment, or furnish an abstract of it, if necessary; and whilst each witness gives his evidence, let him watch the statement he makes, and put any questions which may be necessary to elicit the whole of his testimony. There is such an officer at the Central Criminal Court, and it is believed at Durham also, and formerly there was such an officer in the Court of Queen's Bench, respecting whom Mr. Jones, of the Crown Office, gave the Rev. C. L. Commissioners the following evidence (8 Rep. 345) :-

" There is one distinction between our jury and other juries-that one of the clerks in court, called the clerk of the grand jury, always attends the jury, and sits in the room while they are proceeding in their course. The clerk of the grand jury is abolished by the Act 6 Vict. c. 20, s. ⁽²⁾ - Q. ' Was not the ' assistance of that clerk found very convenient to the grand jury? ' A. ' I think it was very serviceable indeed.' Q. ' He being an instructed person and enabled to assist the grand jury? ' A. ' Yes; the clerk does not interfere with their conclusions, but he takes care that the witnesses are brought up, and that their attention is directed to the various points.' Q. ' He so conducts the proceedings as to enable them to come to right conclusions? ' A. 'Exactly.' Q. ' He is present during the examination, and assists in directing them?' A. ' He does' ".

In the resolutions of the judges upon the case of the murder of King Charles I. (Kelyng 8), " It was resolved that any of the King's (council might privately "manage the evidence to the grand inquest, in order to the finding of the bill of indictment, and agreed that it should be done privately, it being usual in all cases that the prosecutors upon indictments are admitted to manage the evidence for finding the bill; and the King's Council are the only prosecutors in the King's case, for he cannot prosecute in person". There seems, therefore, to be no objection on the ground of novelty to the attendance of an officer before the grand jury, and no doubt can be entertained as to the benefit that would arise from it. If such an officer were employed with such duties, it may reasonably be expected that he would prevent bills from being ignored either, on the ground that the charge was not understood; or, on the ground that all the evidence of the witnesses was not elicited; and, the knowledge that the depositions were present would strongly tend to prevent any witness from betraying the case by willfully keeping evidence back or making a different statement from that which he had made before the magistrate; and such a course would tend to prevent witnesses being tampered with as to the evidence they should give before the grand jury.

It should also be the duty of such officer to see that the grand jury kept together, and that bills were not ignored when several of them were absent. It has sometimes happened that some of the grand jury have quitted the room, leaving perhaps 13 or 14 only in it; and as 12 must agree in order to find a bill, in such a state of things two or three can ignore one, and such has occasionally been the case. The presence of such an officer would wholly prevent this inconvenience. By the Code of New York, s. 235, a grand jury cannot proceed to any business unless 16 members at least are present.

At present at the Central Criminal Court, and it is believed at Durham also, the witnesses are sworn in the grand jury room; in other cases in the court by the crier, whilst the business is going on. This creates noise and confusion, and as the crier's box is generally by the side of the witness box, the witness under examination hears the swearing of the other witness on the one side, and the questions of counsel on the other, and his answers have to overcome the noise around him. Besides which, if an oath is to have its due effect on the mind, it ought to be administered immediately before the witness is examined. Now, by the present system, witnesses often wait hours, and sometimes a day, 'after they have been sworn, before they are examined by the grand jury; and it occasionally happens that they are examined without having been sworn at all. Nor can any possible advantage be suggested in the present system. It should therefore be enacted that each witness should be sworn before the grand jury, provided that in case any question as to the competency of a witness to understand the nature of an oath should arise, the witness should be taken before the court and examined, as at present, in order to determine that question. The I & 2 Vict. c. 37, reciting that the administration of the oath in court has been productive of delay and other inconveniences, enacts, that in all cases the proper officer shall indorse the names of the witnesses on the bill of indictment before the same is laid before the grand jury in Ireland, and empowers the foreman or other member of the grand jury to administer an oath or affirmation to the witness in the presence of the grand jury. I rejoice to see that a Bill seems now likely to pass for the swearing of witnesses before the grand jury.

As a general rule, subject to very few exceptions, any person may present a bill of indictment to a grand jury in the first instance, not only without having taken the case before any justice of the peace, but without any notice to the defendant; nor is the dismissal of a charge by a justice any impediment to the preferring of an indictment before the grand jury for the same offence. This state of law affords the evil-disposed an opportunity of inflicting a large amount of inconvenience, and sometimes of serious injury, upon innocent parties. A bill of indictment is preferred and found on ex parte evidence, and, upon its being found, a bench warrant is obtained, and the first notice the defendant has of the charge is when the warrant is put in execution by his apprehension, and thus he is obliged, at a moment's notice, to find bail to answer the charge, and he may be put to a large expense in defending himself from a groundless accusation. Many are the instances in which indictments for perjury and conspiracy have been so preferred, especially where it has been imagined that by that means some sinister advantage might be obtained in some civil suit pending in Chancery or elsewhere. Such a state of things loudly calls for a remedy; and it is suggested that it should be enacted, that in no case, which is properly speaking a criminal case, and in which the defendant, on conviction, will be liable to personal punishment, shall any person, except the Attorney-general, or a person ordered to prosecute another for perjury under Lord Campbell's Act, 14 &. 15 Vict. c. 100, s. 19, be allowed to present any bill ofindictmentto the grand jury, unless the case has been previously investigated by a justice of the peace, and the defendant committed or bound over to answer the charge contained in the indictment.

In a most luminous judgment on the duties of grand juries delivered in Pennsylvania, and cited at p. 120 of the New York Code, Judge King says,

" The duties of a grand jury, in direct criminal accusations, are confined to the investigation of matters given them in charge by the court, of those preferred before them by the Attorney-general, and of those which are sufficiently within their own knowledge and observation to authorise an official presentment. And they cannot, on the application of any one, originate proceedings against citizens, which, is a duty imposed by law on other public agents. This limitation we regard as alike fortunate for the citizen and the grand jury. It protects the citizen from the persecution and annoyance which private malice or personal animosity introduced into the grand jury might subject him to. And it conserves the dignity of the grand jury, and the veneration with which they ought always to be regarded by the people, by making them an umpire between the accuser and accused, instead of assuming the office of the former".

-Wharton's Crim. Law, 117,118.

By the Code of Criminal Procedure of the State of New York, section 254, the grand jury "may, where the defendant has been held by a magistrate to answer the charge, and in no other case, find an indictment against him". It seems but reasonable that such should be the general rule in England also; there must, however, be certain exceptions grafted upon it.

In the first place, where a charge has been dismissed by the magistrates, it would not be advisable to make that dismissal final; such dismissal may have arisen from error as to the law; new evidence may have been discovered since the hearing before the magistrate, or other circumstances may exist which may render an investigation before the grand jury perfectly proper; and, lastly, it would be liable to great objection, especially in political cases, if the determination of the justice were rendered final and conclusive. The proper course would be to require the depositions to be returned wherever a case was dismissed (as has already been suggested), and to empower the court, on reading the depositions, affidavit of new evidence, or otherwise, in case in its discretion it seemed fit, to allow a bill of indictment to be preferred before the grand jury.

Secondly, it frequently happens that there are several charges against the same prisoner before the justice, and he only examines into one or two of them, and at the assizes or sessions it is found expedient to prosecute the defendant for a charge not examined into by the justice, either because there is a stronger case on the evidence in support of that charge, or for some other reason. So, again, it not infrequently happens that other charges against a prisoner are discovered after he has been committed. In these cases the present practice' is to prefer a bill before the grand jury without any notice to the prisoner. The proper course would seem to be to render it necessary for the prosecutor to apply to the court for liberty to do so in like manner as in the preceding case, and to empower the court either to allow a bill to be preferred, or to direct the prisoner to be taken before a justice, and examined in the usual way. If the court allowed the bill to be preferred, it might be on condition that the prisoner was furnished with a full particular of the charges intended to he made, or with a copy of the statements of the witnesses intended to be called. By section 255 of the New York Code, where the case has not been sent for trial by a justice, the grand jury may make a presentment; and on that, if the court deems the facts stated in it to constitute an offence, it must, by section 278, &c., issue a bench warrant, under which the defendant is to be taken before a justice, who "must, by section 282, proceed " upon the charge contained in the presentment, in the same manner in all " respects as upon a warrant of arrest," on a criminal charge, and with the same opportunity for explanation or defence. This proceeding would appear to be unnecessarily cumbrous; and it is submitted that the course above suggested will be found practically to effect its object by preventing bills being improperly preferred, and yet to give a fair field for prosecution on the one hand and defence on the other.

Lastly, there does not appear to be any necessity for any investigation before a justice in the case of indictments preferred for the neglect of some legal liability, as the repair of roads or bridges, or for the creation of some public nuisance, or the obstruction of some public right. These cases, indeed, would seem so far to be of the nature of civil cases, that it may be deserving of consideration whether they might not advantageously be converted into civil suits, or, at all events, whether an option might not be given to proceed by action instead of indictment. Generally speaking, in these cases the witnesses have to attend at two assizes or sessions; first, in order to appear before the grand jury, and secondly, on the trial; and, in important cases, the indictment is usually removed by certiorari, and tried on the civil side; so that, if a proceeding by action could be substituted, considerable expense might be saved in many cases. In Russell v. the Men of Devon, 2 T. R„ 667, an action was held not to lie against the inhabitants of a county for an injury sustained in consequence of a county bridge being out of repair; but it was said by Lord Kenyon, C. J., that " if it be reasonable that they should be by law liable to such an action, recourse must be had to the Legislature for that purpose." And the statutes of Hue and Cry, 13 Edw. I, st. 2, c. 2, 28 Edw. 3, c.11, 27 Eliz. c.13, and 7 & 8 Geo. 4, c. 31, which afford compensation against a hundred in certain cases, may form a precedent for the Legislature giving an action against the inhabitants of any district, or any corporation or individual liable to the repair of a bridge or road, and in any other cases in which it may be deemed advisable to substitute a civil for a criminal proceeding.

By the common law a grand jury had no authority to inquire as to any offence which was not wholly, or at least partly, committed within the limits of the district for which they served; but there are very many statutes by which a larger jurisdiction has been given to them. Thus, for instance, by the I Will. 4, c.66, s. 24, the offences of forgery, &c„ contained in that Act may " be dealt " with, inquired of, tried, and punished," in any county or place where the offender is apprehended or in custody; and a like provision is contained in the 9 Geo. 4, c. 31, s. 22, as to bigamy. These provisions have been found very beneficial in practice, and no complaint on the part of any defendant has ever been made; but some questions have arisen as to the form of indictment,⁽³⁾ where the prisoner is tried in a county where he was apprehended or in custody.