you shall have or can obtain legal evidence: you shall present no person through malice, hatred or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof; but in all your presentments or indictments, you shall present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God!"

§ 247. The following oath must be immediately thereupon administered to the other grand jurors present: "The same oath which your foreman has now taken before you on his part, you and each of you shall well and truly observe on your part. So help you God!"

§ 248. If,after the foreman is sworn, any grand juror appear, and be admitted as such, the oath, as prescribed in section 246, must be administered to him, commencing, You, as one of this grand jury," and so on, to the end.

The oath prescribed in the last three sections, is substantially the same as at present It puts, however, in plainer language, the precise duties of the grand jury.

§ 249. The grand jury being impanelled and sworn,

must be charged by the court. In doing so, In doing so, the court must read to them the provisions of this code, from section 253 to section 269, both inclusive, and must give them such information. as it may deem proper, as to the nature of their duties, and any charges for public offences returned to the court, or likely to come before [CRIM. CODE.

8

the grand jury. The court need not, however, charge them respecting violations of a particular statute.

This section makes it the duty of the court to charge the grand jury as to their duties, as those duties are defined in the code. It also dispenses with the necessity of charging them as to the violation of particular statutes; a portion of the charge which is uniformly regarded as a mere formality, and which scarcely ever in practice leads to an indictment for the offences referred to, although they are daily and openly committed.

§ 250. The grand jury must then retire to a private room, and inquire into the offences cognizable by them.

Declaratory of the existing practice.

§ 251. The grand jury must appoint one of their number as clerk, who must preserve minutes of their proceedings, (except of the votes of the individual members on a presentment or indictment,) and of the evidence given before them.

Taken from 2 R. S., 3d. ed, 811, sec. 30.

§ 252. The grand jury, on the completion of the business before them, must be discharged by the court; but whether the business be completed or not, they are discharged by the final adjournment of the court.

CHAPTER III.

POWERS AND DUTIES OF THE GRAND JURY.

SECTION 253. Power of grand jury to inquire into all public offences committed or triable in the county, and to proceed by presentment or indictment.

254. When defendant has been held to answer, grand jury may indict. 255. In all other cases, they can proceed by presentment only.

256.

Definition of an indictment.

257. Definition of a presentment.

258. Foreman may administer oaths.

259, 260. Evidence receivable before the grand jury.

261. Grand jury not bound to hear evidence for the defendant, but may

order explanatory evidence to be produced.

262. Degree of evidence, to warrant an indictment.

263. Grand jurors must declare their knowledge as to commission of a public offence.

264. Grand jury must inquire as to persons imprisoned on crimina charges and not indicted; the condition of public prisons; and the misconduct of public officers.

265. Grand jury entitled to access to public prisons, and to examine public records.

266. When and from whom they may ask advice, and who may be pre

sent during their sessions

267. Secrets of the grand jury, to be kept.

268. Grand jury, when bound to disclose the testimony of a witness. 269. Grand juror not to be questioned, for his conduct as such.

In approaching the subject of the powers and duties of the grand jury, the Commissioners 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, accordcording 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 indispensable auxiliary to publie 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 secresy 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 to 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, and upon a state of facts which would not warrant the commitment 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 inquire 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 unrestric'ed 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 npon 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 legislation. 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,