court, or any member of it, or of the district attorney, who are in this as in every other stage of their proceedings, their legal advisers.

Another question of considerable practical difficulty has presented itself to the Commissioners. How far is the grand jury bound or authorised to hear evidence in exculpation of the defendant? Regarding it as a mere accusing body, the answer would be plain, that they are confined to the evidence offered in support of the accusation. But viewing them as a judicial tribunal, it might be said with much propriety, that their powers and duties in this respect are more comprehensive. The Commissioners do not, however, adopt either extreme. The object of a public prosecution is to place the defendant on trial, when there is such reasonable evidence of his guilt as to afford a fair ground to charge him with the offence. His defence or explanation is then properly the subject of enquiry, and in such case should be submitted to the trial jury. It should, nevertheless, be made the duty, and so the Commissioners propose to make it, to weigh all the evidence submitted to them, and when they have reason to believe that other evidence, within their reach, will explan away the charge, to order it to be produced; and for that purpose, they should be authorised to require the district attorney to issue process for the witnesses. (Sec. 274.) And as the concluding rule on this subject, the grand jury should be distinctly informed by the law, that they ought to find an indictment, when all the evidence, taken together, is such as in their judgment would warrant a conviction by the trial jury. (Sec. 275.)

The next subject to be considered, is the indictment. It is treated of, in the proposed code, under the heads of the finding and presentation of the indictment,—its form,—the arraignment of the defendant,—the setting aside the indictment for substantial irregularities in finding it, the demurrer, the plea, and the removal of the action into another court before trial.

In relation to the finding and presentation of the indictment, the former practice, requiring it to be found by at least twelve of the

grand jury, and its presentation publicly to the court by the foreman, is retained. (Sec. 297, 301.) It has been deemed proper also to provide a convenient check upon the practice which now prevails, of repeated applications to the grand jury for an indictment where it has been already dismissed. Cases have existed, where, after frequent dismissals of the indictment, the perseverance of the prosecutor has at length succeeded in procuring it to be found. The Commissioners are not prepared to say, that an indictment should not be found after one or more dismissals; for they are ready to admit, that by reason of the discovery of new testimony or of other facts intimately connected with the due admnistration of practice, it may be both expedient and necessary that the case should be submitted to another grand jury. To prevent, on the one hand, the abuse referred to, and to guard the interests of the public on the other, they have proposed that the dismissal of the charge shall not prevent its being again submitted to the grand jury, as often as the court shall direct; but that without such direction, it shall not be again submitted. (Sec. 299.)

They have also embodied in the code, a provision to the effect that the names of the witnesses examined before the grand jury, or whose depositions have been read, shall be inserted at the foot of the indictment or endorsed upon it, before it is presented to the court. (Sec. 300.) This provision is in accordance with the English practice, which, with all its supposed severity in the punishment of crime, proceeds upon the principle that no advantage shall be denied to the defendant, adapted to enable him to meet and defend the charge. And indeed, so far has it been carried in that country, that the judges are in the constant habit of requiring the prosecuting counsel to place upon the stand as witnesses, all who were examined before the grand jury. In a case recently reported, where the counsel for the prosecution had refused to do this, because the witness was adverse to the prosecution, the judge declared that unless the counsel called him, he himself would do so, that the defendant might have the privilege of a cross-examination, and gave as his reason, a sentiment alike honora

ble to the bench and to the law, that the object of a public prosecution was the attainment of truth and not the conviction of the defendant.

Next, as to the form of the indictment. The Commissioners have bestowed upon this part of their subject most careful and anxious reflection, and after weighing every consideration connected with it, they can confidently say that they have arrived at a result satisfactory to their own minds, and which they believe will be found to be in accordance with the wise and just demand of public opinion. They will not flatter themselves with the idea that their labors in this respect will meet with the universal approbation of the legal profession; but placing themselves upon the immutable principles of common. sense, and regardless of denunciation as visionary reformers, they will be content to rest their claims to having faithfully performed their duty, upon the wisdom and intelligence of the people. They are not ignorant of the fact that their proposed reform will strike at the root of a system, artificial and absurd in itself, and which is only saved from the contempt it merits, by the frequent use of the names of venerable legal authorities, under whose sanction it has grown and ripened into maturity. For what are called the time honored institututions of the past, they entertain a high and becoming regard; but when they are told that the machinery of the law, invented and put in operation in an age of comparative darkness, and permitted to remain for no other reason than that it was easier to continue its use, than to reform it, constitues an exception to the spirit of the age, whose distinguishing characteristic is advancement and reform, they are compelled to wonder at the blind devotion which would deny in this respect, the clear and peremptory demand of the public voice. Nor will they allow themselves to believe that absurdities and fictions, so glaring and gross in themselves, as to provoke the laughter and contempt of the intelligent, will be permitted to continue longer than until a safe substitute for them can be found.

The object of pleading, whether in civil or criminal actions, is to inform the parties of the facts alleged by each against the other, with such clearness and distinctness as to enable them to prepare for the trial of disputed facts, or for the application of the law to those which are admitted. Refine as we may, upon the mode of effecting this object, the must devoted worshipper of the ancient forms will not deny that this is the only legitimate object of pleading. And in its application to criminal cases, in which no special pleading is required on the part of the defendant, by the proposed code, (except where a former conviction is pleaded, which must be in a brief, prescribed form,) the elements of pleading may be still further condensed into this definition: that it is a statement of a crime imputed to the prisoner, with such a particularity of circumstances only, as will enable him to understand the charge and prepare for his defence, and as will authorize the court, applying the law to the facts charged, to give the appropriate judgment upon conviction. Indeed, adopting the definition given by the elementary writers, it will not be found to vary from that just stated. "In the statement of the indictment" says Mr. Archbold, "all the ingredients in the offence with which the defendant is charged, the facts, circumstances and intent constituting it, must be set forth with certainty and precision, without any repugnancy or inconsistency; and the defendant must be charged directly and positively with having committed it."

Yet, upon this simple definition has been built a superstructure of rules and illustrations, the utter ridiculousness of which is a reproach to legal science. In the first place, it is said that the indictment must be certain as to the party indicted; by which is meant that he must be described by his name, or as a person unknown to the grand jurors, in which case something must be stated to ascertain who is intended. He must also be disignated by his "mystery," which, according to Mr. Archbold, means his trade, art or occupation. Again, it must be certain as to the person against whom the offence was committed, and as to the time and place of its commission; but according to Mr. Arch

bold, "although time and place must thus be laid with certainty, it never was necessary that it should be laid according to the truth." (Archb. Crim. Pl. 9th Ed., 40.) It must also be certain as to the fact, circumstances and intent constituting the offence. So far as these rules require the facts to be stated with truth, and, as they tend to inform the defendant with precision what charge he is called upon to answer, they are certainly unobjectionable. But when we come to see, that according to the existing practice, this certainty means everything but what it would seem to import, astonishment may well be expressed that its continuance should be deemed desirable. The uninitiated in the mysteries of pleading can scarcely conceive how entirely futile these rules have become, by the mass of fiction in which they are imbedded. The terms "certainty as to the fact, circumstances and intent," would naturally convey to the mind that the information to be given to the defendant is precisely such as should be furnished to him. But instead of that, it is nothing more nor less than a legal creation, which, in its practical operation, is often made the means of defeating justice upon a mere quibble, or of artfully and adroitly concealing from the defendant the nature of the charge against him.

When we are asked what is meant by certainty, in the sense in which it is used in these rules, we have but to recur to the author just referred to, for a brief and comprehensive, though it must be confessed not a very satisfactory or intelligible answer. "Certainty," says he," is of three kinds:-certainty to a certain intent in every particular; which is required only in pleas, &c., of estoppel and pleas in abatement; certainty to a common intent, which is required in ordinary pleas; and certainty to a certain intent in general, which is required in declarations and indictments. The latter is a medium between the other two; not so great a degree of certainty as the first, and a greater degree of certainty than the second. I shall endeavor further to define them. Where certainty to a certain intent in every particu