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According to the existing practice, prosecutions by indictment may commence, either by bringing against the defendant a public accusation before a magistrate, or a private accusation before the grand jury. Let us imagine that the first course is adopted. Complaint having been made to a magistrate, and the accused having been summoned or apprehended, the prosecutor and his witnesses are called upon, in a public court, and in the presence of the defendant, to state on oath the circumstances on which the charge is founded. The accused or his legal adviser, has then an opportunity of cross-examining the witnesses, of calling others to contradict them, and of making any statement, with the view of explaining, justifying or disproving the charge. If the facts be intricate, if important witnesses be absent, or if time be required for a more careful scrutiny, the inquiry may be postponed to some future day; till, at length, the case having been fully and openly heard on both sides, and the testimony having been reduced into writing, the magistrate decides whether or not the circumstances are sufficiently suspicious to warrant their submission to a jury. If this decision be in the negative, the accused is discharged; if in the affirmative, he is committed or bailed.

"Such being the nature of the preliminary investigation before a magistrate, it would seem that, for the purposes of justice, no further inquiry would be requisite previous, to the trial. But this is not the law; before the case can be presented for the consideration of the jury, the prosecutor and his witnesses, who may either be the parties previously examined, or different persons, must go, one by one, before a secret tribunal, composed of twenty-three gentlemen unacquainted with the law, and repeat the substance of their accusation, in the absence of the accused. No means are provided for testing the accuracy of their statements; the depositions taken before the committing magistrate, excepting at the Old Bailey, are not before them; neither, with a similar exception, is any person present, beyond the grand jurors themselves, to marshal the evidence, or in any way to conduct the proceedings. If, after this inquiry, twelve out of the twenty-three jurors consider that a prima facie case of guilt is established, a true bill is found and the indictment is tried; if a like number entertain a contrary opinion, the bill is re

jected, and the prosecutor must then either abandon the charge, or try his fortune before another grand jury on some future occasion.

"Now, if we contrast the different modes in which these two examinations are conducted, is it not obvious that, even supposing no collusive practices to exist, and assuming the committing magistrate to have no more legal experience than the members of the grand jury, his decision is more likely to be correct than theirs; that where they agree with him, they do not corroborate him, where they differ from him, they are probably wrong; thus, they can seldom do good, and may of ten do evil. But, if this be the case, when the committing magistrate is a mere justice of the peace, with how much greater force does the argument apply, when, as in London, Liverpool and Manchester, he is a professional man, well acquainted with the rules of evidence, and admirably fitted, from long experience, to unravel the tangled thread of human testimony.

"Besides, it is idle to suppose, that frauds are not daily practised on the grand jury. At the preliminary inquiry before the magistrate, the defendant has an opportunity of ascertaining who are the witnesses who depose against him, and what is the nature of their evidence. If, then, he be admitted to bail, what is to prevent him-if he be committed to custody, what is to prevent his friends from tampering with the witnesses? It would be useless, or at least highly dangerous, to attempt to do so if they were only to be examined at the trial; because, on that occasion, the evidence being given in a public court would be publicly known, and the depositions being returned to that court, any material variance in the testimony would be immediately detected, and would render the witnesses liable to an indictment for perjury. But the case is far different before the grand jury. There the jurors being sworn to secrecy, and each witness being examined alone, who is to discover any falsehood that one or more of them may be bribed to utter? Yet, if any unexplained inconsistency appear in the narrative, the grand jury can scarcely fail to doubt its truth, and the consequence is that the bill is ignored. The prosecutor has no means of avoiding this result. He knows that some of his witnesses have betrayed him; perhaps he has reason to suspect the individual who has done so; but he has no remedy. An indictment for perjury must specify the words spoken, and how can he discover what those words were?

The law, indeed, may say that a false witness before a grand jury is subject to prosecution; but the law does not add how a conviction can be obtained; and we believe that, with one solitary exception, no trace can be discovered of such a proceeding.

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"Again, if the witnesses are of such a character as to preclude the hope of their being successfully suborned, the accused may still escape, providing he can only bribe, (and this is no difficult matter,) some person to go to the prosecutor, and pretend that he is acquainted with facts corroborative of the charge. These facts being narrated with the semblance of zeal, the confidence of the prosecutor is gained; the defendant's friend, with the witnesses previously examined, is sent before the grand jury, and there, by an artful statement, throws such doubt on the matter, that no bill is found. It is true, that both these last mentioned abuses might be partially avoided, either by making the grand jury perform their functions as in former days they frequently did, in open court, or by directing that the attorney for the crown should in all cases attend them with the depositions, and conduct the examination of the witnesses, and by distinctly empowering him, as also the grand jurors themselves, to repeat the evidence of any witness whom it might become necessary to indict for perjury. Still the inutility of the inquiry must remain as before; and when we find, as we presently shall do, that this useless machinery is productive alike of a large expense to the country, and of serious inconvenience to witnesses, are we not justified in advocating its immediate abolition?

"Next, let us suppose that the prosecutor, in the first instance, goes before the grand jury. In this case, the earliest intimation of the charge which the accused receives, is, that a bill is found against him. The particulars are kept secret; who his accusers are, or what they have testified against him, he has no means of discovering; indeed he cannot, except in some cases of high treason, so much as demand a copy of their names; nor in cases of felony, is he entitled, even to a copy of the indictment. The law, which now, in fairness, enables him, immediately after the investigation has closed before the magistrate, to obtain a copy of the depositions, at a small cost, and at the trial, to inspect these depositions, without any cost at all, refuses any such indulgence, in the case of a bill being found without a previous examination. That which the legislature admits to be just in the

one case, it wholly disregards in the other; and thus, while a man, who has been publicly accused before a magistrate, has the amplest means of showing the character and motives of the witnesses, and of confuting the charge against him, a party, secretly attacked before the grand jury, is placed on his trial, under circumstances of cruel disadvantage, and must rely on chance, rather than the purity of his conduct, to establish his innocence. But this is not all. A prosecutor who prefers a bill before the grand jury, is not compelled to proceed to trial, in the event of its being found, neither are his witnesses bound over to appear and testify in court. A door is consequently opened to the most disgraceful practices. A bill found by perjury, becomes the instrument of extortion to the innocent but timid man; a bill found by true testimony, is employed with still greater power, to wring money from the guilty."

§ 253. The grand jury has power, and it is their duty, to inquire into all public offences committed or triable in the county, and to present them to the court, either by presentment or indictment, as provided in the next two sections.

254. Upon such inquiry, they may, where the defendant has been held by a magistrate to answer the charge, and in no other case, if they believe him guilty thereof, find an indictment against him.

§ 255. In all other cases, if, upon investigation, the grand jury believe that a person is guilty of a public offence, they can proceed by presentment only.

§ 256. An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a public offence.

§ 257. A presentment is an informal statement in writing by the grand jury, representing to the court, that a public offence has been committed, which is triable in the county, and that there is reasonable ground for believing that a particular individual, named or described, has committed it.

§ 258. The foreman may administer an oath, to any witness appearing before the grand jury.

§ 259. In the investigation of a charge, for the purpose of either presentment or indictment, the grand jury can receive no other evidence than,

1. Such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence: or,

2. The deposition of a witness, in the cases mentioned in the third subdivision of section 12.

§ 260. The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence.

§ 261. The grand jury is not bound to hear evidence for the defendant; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evidence, within their reach, will explain away the charge, they should order such evidence to be produced; and for that purpose, may require the district attorney to issue process for the wit

nesses..