the inquiry into the commission of crime. Those seem to be an inherent element in their composition; but the proceedings which are taken upon them should be essentially different. When the accused is arrested and brought before a magistrate, an opportunity is afforded him of answering the charge and of explaining the circumstances tending to establish his guilt. A responsible accuser is also presented, to whom he may look for redress, if the accusation be malicious or unfounded; but when he is accused by the grand jury, this protection is denied him, and he is dragged before the bar of justice, to answer a charge possibly as false in its substance, as it may be malicious in the motive by which it is prompted. A course of practice which results in this injustice, is not to be defended upon any principle sanctioned by the wisdom of the common law. Its theory is, that every man shall have a full opportunity to meet an accusation against him; and it is a violation of that theory, that he should be subjected to any stage of condemnation without the privilege of being heard in his own defence. The Commissioners have accordingly proposed two modes of proceeding upon the action of the grand jury; first, that where the defendant has been held to answer the charge, and in no other case, the grand jury may, if they believe him guilty, find an indictment against him; second, that if, upon an investigation of a charge against him, whether originated by themselves or presented by another, they believe he is guilty of a public offence, they must proceed by presentment. The indictment is defined to be an accusation presented by the grand jury to a competent court, charging the defendant with a public offence. The presentment is an informal statement by the grand jury, representing that a public offence has been committed which is triable within the county, and that there is reasonable ground for believing that the defendant has committed it. (Sec. 267, 268.) Upon the former, he is of course to be held for trial; but upon the latter, he is only to be held for examination before a magistrate, in the same manner as if an information had been given to the magistrate in the first instance, and with the same opportunity for explanation or defence.

These provisions, though new in practice, are in principle no innovations. In the criminal code recently adopted in Virginia, a similar provision is contained. (Laws of Virginia, 1848, page 145, sec. 16.) And it may be safely asserted, that the principle contained in them is in consonance with the common law itself. In a late case in Pennsylvania, the office of a grand jury was stated by judge King, to be confined to the examination of such cases as were presented by the attorney general, after previous binding over by a committing magistrate. This doctrine was held in a case where a communication had been received from the grand jury, stating that charges had been made by one of their number, to the effect, that one or more members of a public trust had been guilty of converting to their own use public money, and asking that witnesses should be furnished them to enable them to examine the charge."

The remarks of the learned judge are so clear and forcible, that the Commissioners cannot forbear giving them:

“The third and last of the extraordinary modes of criminal procedure," says he, "known to our penal code, is that which is originated by the presentment of a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment being laid before them at the suit of the commonwealth. Like an indictment, however, it must be the act of the whole jury, not less than twelve concurring in it. It is, in fact, as much a criminal accusation, as an indictment, except that it emanates from their own knowledge, and not from the public accuser, and except that it wants technical form. It is regarded as instructions for an indictment. That a grand jury may adopt such a course of procedure, without a previous preliminary hearing of the accused, is not to be questioned by this court. And it is equally true, that in making such a presentment, the grand jury are entirely irresponsible either to the public or to individuals aggrieved; the law giving them the most absolute and unqualified indemnity for such an official act. Had the grand jury, on the present occasion, made a legal presentment of the parties named in their communication, the court would, without hesitation, have ordered bills of indictment against them, and would have furnished the grand jury with all the testimony, oral and written, which the authority we are clothed with would have enabled us to obtain. While the power of presentment is conceded, we think no reflecting man would desire to see it extended a particle beyond the limit fixed to it by precedent and authority. It is a proceeding which denies the accused the benefit of a preliminary hearing; which prevents him from demanding the endorsement of the name of the prosecutor on the indictment before he pleads,—a right he possesses in every other case,-and which takes away all his remedies for malicious prosecution, no matter how unfounded the accusation on final hearing may prove to be: a system which certainly has in it nothing to recommend its extension."

"Grand juries are high public functionaries, standing between accuser and accused. They are the great security to the citizens against vindictive prosecution, either by government, or political partisans, or by private enemies. In their independent action, the persecuted have found the most fearless protectors; and in the records of their do

The spirit of the rule so well expressed in this extract, is embodied and carried out in the provisions proposed by the Commissioners,

ings, are to be discovered the noblest stands against the oppression of power, the virulence of malice, and the intemperance of prejudice. These elevated functions do not comport with the position of receiving individual accusations from any source, not preferred before them by the responsible public authorities, and not resting in their own cognizance sufficient to authorize a presentment. Nor should courts give, unadvisedly, aid or countenance to any such innovations. For if we are bound to send for persons and papers to sustain one charge by a grand juror before the body against one citizen, we are bound to do so upon every charge which every other grand juror, present and future, following the precedent now sanctioned, may think proper hereafter to prefer. It is true, that in the existing state of our social organization, but partial and occasional evils might flow from grand juries receiving, entertaining, and acting on criminal charges against citizens not given them by the public authorities, nor within their own cognizance. But we cannot rationally claim exemption from the agitations and excitements which have at some period of its history convulsed every nation. Those communities which have ranked among the wisest and the best, have become, on occasions, subject to temporary political and other phrensies, too vehement to be resisted by the ordinary safeguards provided by law for the security of the innocent. Under such irregular influences, the right of every member of a body like a grand jury, taken immediately from the excited mass, to charge what crime he pleases on whom he pleases, in the secret conclave of the grand jury room, might produce the worst results. It is important also, in the consideration of this question, to be borne in mind, that the body so to be clothed with these extraordinary functions, is perhaps the only one of our public agents that is totally irresponsible for official acts. When the official existence of a grand jury terminates, they mingle again with the general mass of the citizens, intangible for any of their official acts, either by private action, public prosecution, or legislative impeachment. That the action of such a body should be kept within the powers clearly pertaining to it, is a proposition self-evident; particularly where a doubtful authority is claimed, the exercise of which has a direct tendency to deprive a citizen of any of the guarantees of his personal rights, secured by the constitution. Our system of criminal administration is not subject to the reproach that there exists in it an irresponsible body with unlimited jurisdiction. On the contrary, 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 of authority 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 room, 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 the accused, instead of assuming the office of the former."

"We have less difficulty in coming to these conclusions, from the consciousness that they have no tendency to give immunity to the parties named in the communication of the grand jury, if they have violated any public law. The charge preferred by the grand juror alluded to in the communication, is clear and distinct. It is one over which every committing magistrate of the city and county of Philadelphia has jurisdiction. Any one of this numerous body may issue his warrant of arrest against the accused, his subpoena for the persons and papers named, and may compel their appearance and production. And if sufficient probable cause is shown

continuing in the grand jury all their powers, in respect to the investigation of charges of crime. It is proposed to guard against hasty and ill advised accusations by giving to the defendant, upon presentment by the grand jury, (where he has not been already held to answer,) the same opportunity of answering or explaining the charge, as if he had been proceeded against by an information before a magistrate; while, on the other hand, he is to be committed or bailed upon the presentment in precisely the same manner as upon an indictment. In this manner, the rights of the defendant are protected, and the demands of public justice are abundantly answered.

By other provisions, the duties of the grand jury in relation to the kind and degree of evidence upon which they may legitimately act, are defined. In practice, there is now no established rule upon this subject, and grand jurors are left wholly uninformed, except as they are occasionally instructed upon it, by the court, as to the precise line of duty marked out for them by the law. The consequence has been, that acting very honestly under a mistaken view of their powers, indictments are frequently presented by them upon evidence wholly inadmissible, and which, even if admissible, was legally inconclusive. In one case, an indictment for false pretences was found upon a one-sided and extra judicial affidavit taken in another state.

In an

that the accused have been guilty of the crimes charged against them, he may bail or commit them to answer to this court. The differences to the accused between this procedure and that proposed, are, that before a primary magistrate, the defendants have a responsible accuser, to whom they may look, if their personal and official characters have been wantonly and maliciously and falsely assailed. They have the opportunity of hearing the witnesses, face to face. They may be assisted by counsel, in cross-examining those witnesses and sifting from them the whole truth. And not the least, they by this means know what crime is precisely charged against them; and when, where, and how it is said to have been perpetrated :—rights which we admit and feel the value of, and of which we would most reluctantly deprive them, even if we had the legal authority to do so."

"On the whole, we are of opinion that we act most in accordance with the rights of the citizen, most in conformity with a wise and equal administration of the public law, by declining to give our aid to facilitate the extraordinrry proceedings proposed against the parties named in the communication of the grand jury; and by referring any one, who desires to prosecute them for the offences charged, to the ordinary tribunals of the commonwealth, which possess all the jurisdiction necessary for that purpose, and can exercise it, more in unison with the rights of the accused, than could be accomplished by the mode proposed in the communication of the grand jury." (Wharton's Criminal Law, 117, 118, note.)

other, a witness was conducted into the grand jury room, with a long written narrative prepared by another, and was sworn by the grand jury, generally, as to the truth of the statement, and without fnrther examination or a single question as to the particular facts constituting the accusation, the witness was dismissed and an indictment found. In both these instances, too, the cases originated before the grand jury; no previous complaint having been made. Nor was any remedy within the reach of the defendants. Indicted as they were upon palpably illegal evidence, there was no way of bringing the facts before the court, so as to justify an application to quash the indictments. The Commissioners have reason to believe that innumerable cases of a similar and even of a more flagrant character have existed, and could if necessary be furnished. These, however, are deemed sufficient, to illustrate the necessity of legislation to guard against the continuance of the abuse-arising, too, from no dishonesty of motive, on the part of the grand jury, but from the fact that the delicate and difficult duties of the grand jury in this respect are entirely undefined by law.

The remedy proposed by the Commissioners, is to be found in the provisions which declare, that in the investigation of a charge for the purpose of either presentment or indictment, the grand jury shall receive no other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence, or by the depositions of witnesses, taken under such circumstances as to make them legally admissible; and further, that they shall receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence. (Sec. 272, 273.) These are elementary and simple rules of evidence. They are the rules applicable to every judicial investigation, in accordance with which the examination before the magistrate must be conducted, and by which the final examination of the case before the trial jury is governed. They are rules, too, of plain and familiar meaning, and can be easily applied; or in case of doubt in respect to them, that doubt can be readily removed, by the resort of the grand jury to the advice of the