Summary

Where the legislature and the courts disagree as to what the "prevailing morality" demands, the people alone can decide the controversy. In this way alone justice can be secured.

Amendment of constitutions is a cumbersome, inappropriate means for deciding conflicts between the legislature and the courts over the extent of the "police power."

The "recall of decisions" is a logical means since there is nothing in the constitution to amend, and the only question involved is: Did the court or the legislature correctly represent the "prevailing morality or strong and preponderant opinion" of the people?

The final issue between those intelligently favoring and opposing the "recall of decisions" is the world-old issue between democracy and oligarchy. Some believe in a divine favoritism in capacity for government. Others put their faith in the self-governing instinct of all mankind. To accept the sanctity of a judicial decision requires belief in the superhuman quality of the judge or in the inspired quality of his opinion. To accept the superiority of the crystallized opinion of all the people over the judgment of a few of the people requires faith in humanity itself.

There is the issue. The battle lines are drawn for the future, as in the past, between the conservative, fighting to retain the things that are, trusting to the wisdom of old counselors; and the progressive, pressing forward to what may be, with confidence in the greater wisdom of coming generations.

THE GRAND JURY OF THE COUNTY OF NEW YORK

A Personal Experience

BY GEORGE HAVEN PUTNAM,

New York.

I have served on the grand jury for something more than a third of a century, and during the later years of this period my service has usually been that of a foreman, as the judge and the district attorney always prefer to secure as foreman a juror who has had previous experience.

The institution of the grand jury goes back many centuries and is doubtless of Saxon origin. The earliest reference in English legal history to an "accusing body" apparently possessing the function of a grand jury, dates from the time of Henry III when each county had its own accusing body. In these earlier days, the conclusions of the jury were arrived at without any examination of witnesses; the presentments being based upon the personal information of the jurors. The twelve jurors (the number originally fixed) were sworn to "speak the truth;" and as they were all selected from the immediate vicinage where the events occurred or the conditions existed, their conclusions were assumed to be based upon direct knowledge of the facts. This requirement, which has not been essentially changed during the later centuries, constitutes the essential difference between the requirements for a grand jury and those that are, at least at this time, in force for the making up of the petty jury. The petty jurors, who have the responsibility for the final decision of the case, are, under the routine now in force, supposed to come to the trial with blank minds. It is assumed that all the knowledge that they secure of the matter at issue is to be obtained from the evidence and arguments presented in the court. They are, in fact, instructed by the court that their decision must be arrived at without consideration for, or the influence of, any other facts or information than have been presented in the course of the trial.

The grand jury as now constituted comprises, including the foremen, twenty-three members, and sixteen of these constitute a quorum. A true bill can be found, or a decision in regard to any matter

at issue can be arrived at, only with the vote of not less than twelve jurors out of a quorum of not less than sixteen. The persons to serve as grand jurors are selected from the list of trial or petty jurors by a board comprising the presiding justice of the appellate division of the supreme court in the first department, the mayor, an associate justice and two justices of the court of general sessions. The commissioner of jurors serves as the clerk to said board and produces for their action the lists of jurors. This board also fills vacancies in the list. The persons selected are supposed to be men accepted as possessing standing and character in the community. It has proved possible, however, at times when the control of the city government was in the hands of Tammany Hall, to secure the acceptance in the list of grand jurors of men who could not properly so be described. It has been charged in fact that in years past men have been placed upon the grand jury for the particular purpose of protecting certain persons whose business and whose operations were opposed to the interests of the community and were likely to come under investigation.

The grand jury list or panel was for a number of years restricted to one thousand names; but in June, 1910, the panel was increased to twelve hundred. If one thousand jurors were required to carry on without hindrance or delay the business of the grand jury for the city of twenty-five years back, a panel of not less than three thousand names should be instituted in order to provide, without undue burden upon this special group of representative citizens, the necessary facilities for taking care of the routine business and to leave time free for the general supervision on the part of the jury of the operations of the city departments and for such special investigations into the work of the municipality and into alleged abuses as they may find occasion for. Twelve hundred men are not sufficient to give due attention to these two classes of responsibilities in a county containing more than three millions of people. During the past few years, it has been necessary to keep two grand juries in session each month, and not infrequently has there been requirement for the work of three juries sitting at the same time.

The service of a grand jury continues as a rule during the calendar month, but if at the end of the month the jury has on its hands any unfinished business, an investigation, for instance, in which a portion only of the witnesses have been heard, it is customary to

hold the jury in session for such further time as may be required to complete each case that it has undertaken. The sessions of the jury are held daily, except Saturdays, but if a jury is continued in existence for the completion of unfinished business, it is not as a rule necessary during a second or third month to hold daily sessions.

Grand juries are sometimes called for the purpose of conducting a special investigation, and in that case they are held for periods extending from one month to five. The foreman is selected by the court after the twenty-three names have been drawn from the clerk's box. The foreman has authority to excuse certain members of the jury from day to day as long as he retains for the work of the day not less than the quorum of sixteen. The wise foreman will, however, refuse to excuse more than three men for any one day. It is difficult to ensure adequate attention for certain classes of business or to feel assured that justice has been done in important cases, unless at least twenty men out of the twenty-three have listened to the evidence. There is, of course, also always the chance that owing to temporary illness, or to some urgent requirement, one or more jurors may be called away in the course of the day's session.

The fee of two dollars is no greater than that accorded to the members of the petty jury, and the foreman, who is called upon to give a very much larger amount of time and skilled labor to the work, receives the same compensation as the other members. The foreman is expected to report earlier than the hour fixed for the session, in order to consider with the district attorney the business to be taken up. He is often called upon to remain after the session has closed, for the purpose of examining papers and of giving judgment in regard to witnesses to be called for the next day's session. The responsibility rests chiefly upon the foreman of initiating any special business to be taken up by the jury, and it is the foreman also who is expected as a rule to prepare the text of presentment or of reports on special investigations. A compensation of not less than $5 a day would be in order if only to indicate the difference between the requirement made upon his time and attention as compared with what his associates are expected to give.

The grand jury sits as a part or division of the court to which it is attached, and by which it has in fact been constituted. This court is either the general sessions or the criminal division of the supreme court. Its room has, therefore, the character of a court room, and

the foreman is expected to enforce the same dignity of procedure as is proper in a court when the presiding judge is present. Upon the foreman rests the responsibility of administering the oath or the affirmation to the witnesses, and the examination of the witnesses, except in the cases in which the foreman decides to place this in the hands of the district attorney, is conducted by the foreman. This routine calls for the active attention of the foreman during the whole of the session.

and

The business of the grand jury room in the county of New York is carried on quite largely in language other than in English. There are at this time from 70 to 100 different languages and dialects spoken within the county, and the proportion of trouble of one kind or another that comes upon our foreign citizens appears to be decidedly greater than that with which those of English or American birth are concerned. The grand jury has, therefore, subject to its call the interpreters attached to the court, men who are able, with a few exceptions, to compass the series of languages in which evidence is given. Many of these interpreters have served for a number of years, their capacity and trustworthiness are vouched for by the court. Each interpreter must, before his statement can be accepted in a case, be sworn for the service of the month. There is risk that the interpreter may, instead of putting the question exactly as given by the foreman and of presenting a precise rendering of the reply of the witness, take the matter somewhat into his own hands. He has often talked with the witnesses before coming into the jury room, and he has his own definite opinion as to the nature of the case. This opinion may in the majority of cases be well founded, and I have, as foreman, not infrequently had occasion to express my obligation to the interpreter for suggesting a line of inquiry that had not occurred to me.

It is, however, undesirable to allow the interpreter to manage the case, and it is, of course, important also to bring home directly to the consciousness of each juror as far as possible the precise statements submitted by the witness. In past years, I have also had occasion to doubt the trustworthiness of interpreters who have been appointed under the recommendation of Tammany officials, and I have found that they were managing cases in a way that was not conducive to justice. I have made it a practice, therefore, as foreman, to utilize whenever possible the service of some member of the jury