THE LAW MAGAZINE.

ART. I.-DEFECTS OF CRIMINAL PROCEDURE. Observations on the Inutility of Grand Juries, and Suggestions for their abolition. By W. C. Humphreys, Attorney at Law. London: Saunders and Benning. 1842.

Forms of Writs and other Proceedings on the Crown Side of the Court of Queen's Bench, with Practical Directions. By Mr. A. B. Corner, of the Crown Office. London: Saunders and Benning. 1844.

On Peremptory challenge of Jurors. By Henry H. Joy, Esq., Barrister at Law. Dublin: Andrew Millikin. London: A. Maxwell and Son. 1844.

Local Courts not the Remedy for the Defects of the Law; with Suggestions of a Plan of Legal Reform. By B. Boothby, Esq., Barrister at Law. London: Saunders and Benning; Ridgway. 1844.

The present government have, in the phrase of Lord Brougham, "mercifully stept in to save" the Criminal Law Commissioners from the doom which awaited them at the niggard hands of their former supporters; and Sir James Graham, with a liberality that does him honour, has directed them to complete the great work on which they have been so long engaged, by preparing a report on the subject of criminal procedure.

With the view of obtaining the best information respecting the subject-matter of their labours, the Commissioners have drawn up certain queries1, which they have circulated largely among the clerks of assize, the clerks of the peace, coroners, and such members of the profession as they deemed capable of assisting them in their important undertaking. Whether these last named gentlemen will prove that they possess the will, as they undoubtedly have the power, to furnish valuable

This circular was printed in our last number, p. 240, to which the reader is referred.

suggestions for the amendment of the law, remains yet to be seen; we ourselves entertain serious doubts on the subject, and indeed we think that the request of the Commissioners can scarcely be considered reasonable or just. The members of the bar are engaged in a profession requiring intense study and almost incessant toil. Their time is to them of the utmost value; their expenses are unavoidably large; and too many of that body have little beyond the produce of their own industry to depend upon. Is it, then, fair to ask such men, either to neglect their business, or to trespass on their few hours of leisure, in order gratuitously and privately to answer questions involving the most intricate points of practice, and, consequently requiring much laborious investigation, when they know full well that other parties, who are amply remunerated for the task thus attempted to be performed by proxy, will gain all the credit of the amendments proposed, whoever may suggest them? We certainly do not consider this fair, and we candidly confess, that, had it not been for the existence of this Magazine, the queries of the Commissioners, which we now, in part, propose to discuss, would, by us at least, have remained unanswered.

The first two questions, which, for the sake of convenience, we have taken together, relate to the present mode of instituting inquiries on criminal charges; and we venture to commence our observations on this head, by offering a suggestion, that will perhaps startle some of our readers. We would abolish grand juries; not only because we consider them to be utterly useless, but because we conceive that in many cases they defeat the ends of justice; in many they are instruments of oppression, and in all they create a large expense, and are productive of much inconvenience.1

According to the existing practice, prosecutions by indictment may commence, either by bringing against the defendant

1 We heartily recommend to our readers Mr. Humphreys' pamphlet on the Inutility of Grand Juries. It is written with calmness and candour, and is the work of a practical man thoroughly acquainted with the subject on which he writes.

2 Criminal proceedings may also, in some instances, begin by a coroner's inquest, by the presentment of a grand jury, or a court leet, or by an information filed by the Attorney General, or granted at the instance of a private relator. All these subjects are of great interest, but our limits preclude us from discussing them in the present article.

a public accusation before a magistrate, or a private accusation before the grand jury. Let us imagine that the first course is adopted. Complaint having been made to a magistrate, and the accused having been summoned or apprehended, the prosecutor and his witnesses are called upon, in a public court, and in the presence of the defendant, to state on oath the circumstances on which the charge is founded. The accused, or his legal adviser, has then an opportunity of cross-examining the witnesses, of calling others to contradict them, and of making any statement, with the view of explaining, justifying, or disproving the charge. If the facts be intricate, if important witnesses be absent, or if time be required for a more careful scrutiny, the inquiry may be postponed to some future day, till, at length, the case having been fully and openly heard on both sides, and the testimony having been reduced into writing, the magistrate decides whether or not the circumstances are sufficiently suspicious to warrant their submission to a jury. If this decision be in the negative, the accused is discharged; if in the affirmative, he is committed or bailed.

Such being the nature of the preliminary investigation before a magistrate, it would seem that, for the purposes of justice, no further inquiry would be requisite previous to the trial. But this is not the law; before the case can be presented for the consideration of the jury, the prosecutor and his witnesses, who may either be the parties previously examined, or different persons, must go one by one, before a secret tribunal, composed of twenty three gentlemen unacquainted with the law, and repeat the substance of their accusation in the absence of the accused. No means are provided for testing the accuracy of their statements; the depositions taken before the committing magistrate, excepting at the Old Bailey, are not before them, neither, with a similar exception, is any person present beyond the grand jurors themselves, to marshal the evidence, or in any way to conduct the proceedings. If, after this inquiry, twelve out of the twenty three jurors consider that a primâ facie case of guilt is established, a true bill is found, and the indictment is tried; if a like number entertain a contrary opinion, the bill is rejected, and the prosecutor must then either abandon the charge, or try his fortune before another grand jury on some future occasion. Now, if we contrast the different modes in which these two

examinations are conducted, is it not obvious that, even supposing no collusive practices to exist, and assuming the committing magistrate to have no more legal experience than the members of the grand jury, his decision is more likely to be correct than theirs; that where they agree with him they do not corroborate him, where they differ from him, they are probably wrong? thus, they can seldom do good, and may often do evil. But, if this be the case, when the committing magistrate is a mere justice of the peace, with how much greater force does the argument apply, when, as in London, Liverpool and Manchester, he is a professional man well acquainted with the rules of evidence, and admirably fitted, from long experience, to unravel the tangled thread of human testimony.,..

Besides, it is idle to suppose that frauds are not daily practised on the grand jury. At the preliminary inquiry before the magistrate, the defendant has an opportunity of ascertaining who are the witnesses that depose against him, and what is the nature of their evidence. If then, he be admitted to bail, what is to prevent him, if he be committed to custody, what is to prevent his friends from tampering with the witnesses? It would be useless, or at least highly dangerous, to attempt to do so, if they were only to be examined at the trial; because, on that occasion, the evidence being given in a public court would be publicly known, and the depositions being returned to that court, any material variance in the testimony would be immediately detected, and would render the witnesses liable to an indictment for perjury. But the case is far different before the grand jury. There, the jurors being sworn to secrecy, and each witness being examined alone, who is to discover any falsehood that one or more of them may be bribed to utter? yet, if any unexplained inconsistency appear in the narrative, the grand jury can scarcely fail to doubt its truth, and the consequence is that the bill is ignored. The prosecutor has no means of avoiding this result. He knows that some of his witnesses have betrayed him, perhaps he has reason to suspect the individual who has done so, but he has no remedy. An indictment for perjury must specify the words spoken, and how can he discover what those words were? The law indeed may say that a false witness before a grand jury is subject to prosecution, but the law does not add how a conviction can

be obtained; and we believe that, with one solitary exception, no trace can be discovered of such a proceeding.1 1

Again, if the witnesses are of such a character as to preclude the hope of their being successfully suborned, the accused may still escape, provided he can only bribe, and this is no difficult matter, some person to go to the prosecutor, and pretend that he is acquainted with facts corroborative of the charge. These facts being narrated with the semblance of zeal, the confidence of the prosecutor is gained; the defendant's friend, with the witnesses previously examined, is sent before the grand jury, and there, by an artful statement, throws such doubt on the matter that no bill is found. It is true that both these last-mentioned abuses might be partially avoided either by making the grand jury perform their functions, as in former days they frequently did, in an open court, or by directing that the attorney for the crown should in all cases attend them with the depositions, and conduct the examination of the witnesses,3 and by distinctly empowering him, as also the grand jurors themselves, to repeat the evidence of

·!,,

Mr. Chitty in his 1st vol. of Crim. Law, p. 322, states that perjury before the grand jury is indictable, and refers to his volume of Precedents, which contains nothing on the subject. See the observations of Lord Ellenborough in Watson's case, 32 State Trials, 107; and see R. v. Marsh, 6 A. & E. 237; R. v. Cooke, 8 C. & P. 5 584; 12 Vin. Abr. Ev. B. a. 5; 4 Bl. Com. 126. The case noticed in the text is mentioned by Mr. Christian in his note to this last passage; he says that, at York, a grand juror, hearing a witness swear in court contrary to the evidence which he had given before the grand jury, told the judge, and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury." What became of the case does not appear, and it would seem that the perjury complained of was uttered in court, and not before the grand jury.

2

The last instance of this was in Lord Shaftesbury's case, the bill against whom was thrown out by the grand jury in the year 1681. There, Pemberton and North

C. declared, that it was the constant practice ice for the grand jury to examine wit

nesses

in open court, if the counsel for the prosecution desired it, 8 State Tri. 771— 4775.10trazisk

3

This course was adopted in 1660, in the case of the Regicides, 5 State Tri. 972; in 1681, in Colledge's case and in Fitzharris's case, 8 id. 723, 724; and in 1794, upon the indictment of Hardy, 5 id. 972, n. *. In 1796, when Crossfield was charged with high treason, the grand jury refused to allow the solicitor for the Treasury to attend the examination, 8 id. 773, n.; and indeed many serious objections to this practice may be successfully urged. See observations of Sir John Hawles in 8 id. 723, 724. At the Old Bailey a clerk now attends the grand jury with the depositions, but it seems that this attendance is optional on their part.