ted that an indictment may be found. Upon this subject ample provision is made for the drawing and summoning of the grand jury, and for empanelling them before entering upon their duties. (Sec. 216-265.) These provisions are, in the main, in accordance with the existing practice. They embrace, however, one or two new principles, to which it is deemed proper briefly to refer. The grand jury as is well known, must consist of not less than sixteen, nor more than twenty-three, of whom twelve must concur in finding an indictment. It frequently happens that the requisite number do not attend, and in such case the sheriff is directed by the court to summon a sufficient number to complete the panel In the performance of this duty, he is placed under no restriction, but is at liberty to summon such persons as he may choose. choose. Without intending to impute to any public officer, the wilful neglect or corrupt performance of his duties, it cannot fail to strike the common sense of every man as somewhat unaccountable, that the law, after having made the most full provision for drawing the jury by lot from the county box, in the presence of three sworn public officers, and after imposing upon them every restraint adopted to the prevention of unfairness, should in the last resort have left the selection of sometimes a large portion of the grand jury, to the mere will of the officer, whose caprice in the selection of the jury originally it was the very object of the law to prevent. The provisions of the existing statutes on this subject, to which allusion has just been made, imposing checks upon the possibility of abuse in this particular, were introdueed frrm no idle jealousy of the integrity of the officer, but because in the excitements, political and otherwise, which not unfrequently arise, it was deemed wise to protect it from suspicion; and no sound reason can be given why that principle should not be fully carried out, especially where it can be done without inconvenience.

The Commissioners have accordingly proposed, that in the city of New-York, the names of the persons required to complete the grand jury should be drawn hy the county clerk in the presence of the same [FOURTH REP.]

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officers by whom the original jury must be drawn; and that in the other counties, they may, in the discretion of the court, be drawn in the same manner, or may be publicly designated by the court from the by-standers or the body of the county. (Sec. 242, 243.)

The Commissioners have also endeavored to supply a defect in the existing statutes, in respect to challenges either to the panel generally; or to individual grand jurors. It is sufficient to say upon this subject, that the proposed provisions, (sec. 250-256,) embody the principle that the panel may be set aside where such irregularities have occurred in drawing the grand jury, as depart from the substantial requirements of the law, and as in their own nature tend to the prejudice of the defendant; and that the challenges to individual grand jurors extend to cases of personal disqualification, and to the case of the prosecutor, or of one who has formed or expressed an unqualified opinion that the defendant is guilty of the offence charged.

The powers and duties of the grand jury constitute the next subject which has occupied the attention of the Commissioners. In approaching it, they have felt much embarrassment, and have, therefore, devoted to it, the patient and laborious consideration which it demanded. The value of this institution is at the present day variously regarded. By some, it is deemed of the highest importance, as furnishing, by reason of its secrecy, a most valuable aid in the efficient detection and punishment of crime; while, by others, it has been regarded, by reason of that very secrecy, as subversive of the rights, and destructive of the liberty of the citizen. Upon which side the balance of the argument preponderates, it is not for the Commissioners to say, or even to suggest. One thing, however, is certain; that the preservation of its usefulness, like that of every other department in the administration of the laws, depends upon a clear and well understood definition of its powers. To leave these vague and unlimited, is to make the institution itself an object of jealousy and alarm. It is retained and perpetuated by the constitution, and it is not the design of the Commissioners to abridge any of its just attributes, or to propose anything which

can in the slightest degree impair its usefulness or efficiency. But they at the same time, regard it as their duty, to propose in respect to it, such provisions as will carry into effect its objects, according to the spirit of the institution itself, and in harmony alike with the interests of the public and of the citizen. It had its origin in England, at a time when the conflicts between the power of the government on the one hand, and the rights of the subject on the other, were fierce and unremitting; and it was wrung from the hands of the crown, as the only means by which the subject, appealing to the judgment of his peers, under the immunity of secrecy, and of irresponsibility for their acts, could be rendered secure against oppression. Happily, in our country, no illustration of its value in this respect, has been furnished. But it was nevertheless, introduced among us in the same spirit in which it took its rise in the mother country, and as the very language of the constitution shows, was designed to be a means of protection to the citizen against the dangers of a false accusation, or the still greater peril of a sacrifice to public clamor. That language is, that "no person shall be held to answer for a capital or otherwise infamous crime, (except in cases which are enumerated,) unless on presentment or indictment of a grand jury.”

Acting within this sphere, the institution of a grand jury may be justly regarded, not merely as a safeguard to private right, but as an indispensible auxiliary to public justice; and within these limits, it is the duty alike of the legislature and of the people to sustain it in the performance of its duties. But when it transcends them, when it can be used for the gratification of private malignity, or when, wrapping itself in the secrecy and immunity with which the law invests it, its high prerogatives are prostituted to purposes frowned upon by every principle of law and of human justice, it may become an instrument dangerous alike to public and private liberty.

That it has been so used, is a fact which admits of no disguise. Cases are not unfrequent, where parties stimulated by avarice or revenge, have found their way into the secrecy of a grand jury room, upon a state of facts which would not warrant the commitment

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of the defendant in any other form, have succeeded in obtaining an indictment against him. It is well known, among the legal profession at least, that the just legislation, which has abolished the imprisonment of the debtor in a civil action, has led to an unexampled number of complaints, against many whose greatest crime was their misfortune, upon the allegation of the fraudulent procurement of property; and the experience of every lawyer will attest the fact, that there are few cases in which the disappointed creditor would not, if he could, invoke the aid of the criminal law, as the means not so much of punishment, as of coercion. In cases of this kind, as well as in others rather of a private than of a public nature, it will be readily perceived there is some danger that the grand jury may be used for purposes not only unnecessary, but absolutely hostile to the interests of the public. This is but one class of cases illustrating the danger of allowing the grand jury, under their general power to enquire into all offences triable within their county, to hear complaints in the first instance and to originate accusations. But a still more striking example of the danger of this unrestricted power, is to be found in the fact, that cases have existed, where prosecutors who have been defeated before the examining magistrate, have availed themselves of the privilege of the subpoena of the district attorney, to present themselves before the grand jury, and upon a one sided statement obtain an indictment. The powers and duties of the grand jury being in this respect wholly undefined, the practical result has been that private information conveyed to a grand juror, or the permission of the district attorney, (who may literally be said to keep the keys of the grand jury room,) has led to numberless prosecutions prompted by private interest, and to speculations upon the fears of the unfortunate, which would have been defeated by a public scrutiny, or by an opportunity afforded to the accused of explaining or defending himself against the charge.

If the grand jury is to be preserved in its purity,—if the confidence of the people is to be enlisted in its behalf, without which its usefulness must cease, these things must be corrected by wholesome legisla

tion. The grand jury was designed to be, and the Commissioners are willing to admit, in most cases is, a body of discreet and thinking men, called together to protect the public interests, and not to be converted into instruments of private cupidity or vengeance. Instead of being an accusing party, it is and ought to be a judicial tribunal. Instead of acting hastily and unadvisedly upon an accusation against the citizen, and placing him upon trial for the gratification of private feeling, it should be made to stand upon the higher ground of vindicating the dignity of the public law. To do this, limits must be set to the extent of its powers, and restrictions must be placed upon their exercise. Without these,-rendered necessary by the secrecy by which the grand jury is surrounded,—the full assurance cannot exist, that public and private interests are safe in its hands.

Under the present system, these safeguards cannot be found. Within the sphere of what they choose to consider their duties, the grand jury is omnipotent. Accusations in which the public are deeply concerned, may be dismissed without a question. Indictments may be preferred upon slight evidence or upon no evidence; and the action of the grand jury is beyond the reach of the law. And in short, acting, as it does, without responsibility, there is no small reason to fear, that from being conservative in its aims, it may ultimately degenerate into an object of public aversion. From the abuses of which it is susceptible, and which have been too often practised under its unconscious sanction, it is not to be disguised, that even now its moral power is waning, and unless preserved by legislation, may eventually cease.

These remarks are made in no unfriendly spirit to the existence of this institution, but from a firm conviction, that to preserve its usefulness, and indeed its very existence, the restraints, as well as the safeguards of the law, must be thrown around its action. To effect this object, the first principle that the Commissioners assume is, that the functions of the grand jury as an accuser and as a judge should be separated. It is not proposed to abridge their powers in respect to