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of setting in motion the apparatus of criminal procedure, but the infliction of heavy punishment for wilfully giving false testimony, and liability to damages in a civil action for a malicious prosecution, or a false imprisonment. If it be needful, let these remedies be made more facile, and these safeguards more effective. Put every man who prefers a criminal charge against another before the grand jury, under heavy recognizances to go on with it, and let the law be rigorous and severe in exacting penalties from the secret accuser of another who, without just cause, procures a bill of indictment that he may inflict annoyance on the defendant; or, having just cause, uses his accusation as an instrument of extortion, and not as an engine for working out the ends of justice. Let testimony before a grand jury be recorded, so that, if necessary, perjury may be assigned upon it, and the man be punished with exemplary severity who has wickedly varied in his statements before the magistrate, the grand jury, and the court or before the two latter only; or, in cases where he has been only before the grand jury, and takes no further steps on his bill of indictment, when he has procured that bill by wilful falsehood. Such measures as these would seem to be the appropriate correctives of the mischief under consideration; and until they are tried and found ineffective, the objection that the mischief more or less prevails is not entitled to any great consideration.
But it is time to advert to the reasons which seem to make it important to pause before we abolish an institution so fitted into the framework of our constitution-so identified at different periods of our history with our dearest liberties and rights. It is in its constitutional aspect that the grand jury and its functions assume the greatest importance. Let me regard it for a few moments in that light. As the law stands at present, the crown cannot (except in matters of minor importance and of limited number, where an ex-officio information may be filed by the Attorney-General) proceed against any man for an alleged offence against the state, without submitting the facts upon which the accusation is grounded to the judgment of a tribunal selected from the educated and
intelligent classes of the community. Unless at least twelve of such persons are satisfied that a primâ facie case exists for further and fuller investigation, the accused cannot be exposed to the disgrace and peril of a public trial. It cannot be denied that charges of political and state crimes are found to be most frequent at (are indeed almost limited to) times of great public excitement and discontent. When a conflict is going on between prerogative and liberty, between popular rights and the power of the crown, or when some obnoxious law is sought to be enacted or repealed, at such times the press and the people are both stimulated to unwonted activity and energy, and the liberty of speaking and printing is taken full advantage of. The popular passions find vent and voice at great public meetings, where vehement speeches are made, strong resolutions passed, strong memorials and petitions adopted. All this is done roughly-sometimes even fiercely; much that is unwise, much that is unjust, much that is untrue, is uttered and believed.. Authority becomes provoked and attempts measures of repression; and it commonly begins by selecting the most prominent and noisy exponents of the popular will as the subjects of indictment for seditious or treasonable libel; or it goes lower and apprehends the most violent members of a mob, and charges them with seditious tumult and riot. Or the government may resort to more extreme measures-may call in the aid of the military, and the blood of the people may be spilt on the scene of some immense gathering; and then, in all probability, the criminal law will be invoked on both sides-the government arming itself with indictments against individuals for sedition or treason; the people defending themselves with indictments against officers and soldiers for manslaughter or murder. In such crises as these, the grand jury has, over and over again, rendered invaluable service; the subject has been protected by them in the fullest exercise of his right to demand (though clamorously) the redress of his grievances; the crown has been vindicated in its constitutional efforts to repress sedition and insurrection. The force of the shock is broken when order and liberty meet in these, their rudest
conflicts. The bitterness of the strife is allayed, when the rulers and the populace are in angry collision with each other, by a court so constituted as to have sympathies with both parties, and fitted, therefore, to act as mediator between them. The harshness of authority is mitigated by its acting through such an organ; the lawless impulses of the disaffected subside when they have the opportunity of appeal to a popular tribunal. The scene of conflict is thus shifted from tavern halls and open commons, to the arenas of justice. Both parties change the weapons of their warfare; both appeal to the law. The demagogue stops his inflammatory harangue to advise with his lawyer; the government recalls its troops and instructs the Attorney-General. The result of this is, that the greatest political questions come on for discussion in our criminal courts, and come on under circumstances very favourable for their correct solution. By ignoring a bill, the grand jury, in sympathy with a people oppressed, calmly rebukes the crown: by finding a bill, they tranquilly coerce the lawlessness and violence of the mob; they stand midway between the opposing parties and avert a direct shock; they save the authorities from a more mortifying defeat by stopping their proceedings in limine; they save liberty from discredit by chastising its excesses by the law; and they accomplish all these purposes better than any other tribunal which could be devised to replace them. It is true, indeed, that many persons who advocate the abolition of the grand jury, in ordinary cases of felony, plead for its retention in political cases; but the distinction between the one class and the other is hard to define. Social questions, as of the relations of employer and employed, labour and capital, conformists and non-conformists, and the like, may come into controversy, and really, though not ostensibly, may become political. Who, then, is to decide as to the category within which they are to fall? Is the crown to determine for itself when the grand jury is to be summoned? This would be obviously absurd. The more important it became that the subject should have the protection of an independent and enlightened tribunal, whose members discuss in secret, and are therefore
safe from vindictive proceedings at the suit of the crown, the less likely would it be that the grand jury would be impanelled. In stormy times both parties run into extremes, and act with little forbearance. It may be easy in tranquil seasons to prescribe in which cases a grand jury must be had, and in which it may be dispensed with, for then the question is immaterial, and can be discussed without passion; but just as the problem becomes important, its solution becomes difficult, and when the point in controversy is seen to be vital, its right decision becomes impossible. To leave such questions to be settled at such times, is as if we should leave the building of the breakwater till the midst of the tempest.
But the grand jury not only interposes a shield between the crown and the subject to protect the latter from the oppression of power; it gives to him also a weapon wherewith he may assail the organs and ministers of prerogative, for he may go with his bill of indictment before that court, and accuse of malversation, or undue rigour, or dishonesty, or injustice in the execution of his functions, any officer of the government; and may succeed in putting the accused on his public trial at a time when it might be difficult to find a crown-appointed magistrate sitting in open court, willing to place himself in an attitude of hostility to the authorities, by holding the accused person to bail. Were this right withdrawn the subject might become impatient and irritated beyond endurance by petty acts of extortion or harshness, for which the law offered him no adequate redress: were this liability removed, those in places of authority might be encouraged to misdemean themselves in their office.
But, lastly, the distinguishing characteristic of our English administrative system, both civil and criminal, is its popular element. The distinguishing feature of all our modern changes of it is the introduction of a professional and official element. Up to recent times all controversies between subject and subject in civil actions, and between crown and subject in criminal cases, were settled under the guidance of a judge and with the assistance of counsel, by the people themselves, impanelled as a jury. How numerous have been
the modern invasions of that practice! In our county courts, in our police courts, we have at present innumerable examples of the abandonment of our ancient usage. I do not say that this change is without advantages; I point merely to the fact that the effect of our modern reforms has been to withdraw the people from the tribunals and replace them by officials;— to have more judges and fewer juries. The proposal now under consideration is another most signal example of this tendency. It is a scheme to extinguish a most popular tribunal, which has been illustrious and venerated for ages. Surely it is not incorrect to say that the signal confidence of the English people in the administration of the law, results very much from the large share they have in administering it, and the confidence of the people is of immensely more moment than the perfection of a system. An administration, civil and criminal, which satisfies the millions and is thoroughly popular, is unspeakably better than one theoretically more perfect, but practically less acceptable. Again, I attribute the independence and love of liberty in England, combined with the obedience and cheerful submission to authority which distinguishes the people, to the education and training they receive as jurors, petty or grand, and as magistrates. They are taught the value of the law by assisting to dispense it; they learn the importance of civil rights by aiding to vindicate them; they abhor crime, because they are called on in a solemn and significant mode to visit it with retribution. In every department of justice their opinion is required; the most momentous questions are submitted to their judgment; the most important rights are settled by their intervention; the most tremendous consequences follow from their decisions. Hence the people become grave, cautious, self-controlling, as well as intelligent and well informed; and the whole tone of a man's character, and the whole tenor of his life, is improved by the casting upon him of such responsibilities, and the requiring of him the discharge of such offices. Shall we continue to reap these advantages if we remove their causes? Will the people be interested in the administration of justice when they have ceased to be its