Page images

terity has sometimes treated them with indifference. In a word, their profession could hardly satisfy their ambition, or even serve their pecuniary interests. When I compare the splendid monuments erected to generals and admirals in many towns with the modest tomb of Hugo Grotius—when every parish has its great men, but the resting-place of true greatness is hardly to be found—I appreciate more the modest devotion of those who can work for science and for humanity, without other prospects of reward but the respect and gratitude of the friends of civilisation. Let us then pay them, gentlemen, our tribute of sympathy! They have left us good examples-a love of truth, a sincere desire of peace, a brotherly feeling to all the Christian family, a great respect for right and for justice. Dr. Wurm was distinguished by these qualities in no less a degree than other international jurists ; he worked honestly and conscientiously; he obeyed, during all the struggles and excitement of our age, the sense of duty; he was persecuted for his liberal opinions; he was suspected and misrepresented in his feelings. May he rest now in peace, and let us not forget his works and his merits! May his successors study international jurisprudence with the same spirit of impartiality and toleration ; may the words Immer wahr, which I have read on the seal of his letters, become their true device, and guide them in the paths of science !



[Read 20th December, 1858.] No institution ought to be deemed entitled to exemption from criticism because it is old. For whilst, on the one hand, its antiquity may be fairly pleaded as presumptive evidence of its utility, on the other hand, it may be argued that the usefulness of institutions depends upon their adaptation to times and circumstances, and as these change so ought those. Hence it might not unreasonably be urged that an antique system or establishment rather invites the hand of reform, from its presumed unsuitableness to an age so different in many respeots from that in which it took its rise, than repels it by a claim of prescriptive immunity from review or reversal. In truth, however, whatever à priori reasons may exist in favour either of interference or forbearance in respect to any single law or usage which has been handed down from olden time, they become of little moment in the presence of a spirit of eager innovation, such as that which (justly or unjustlywisely or unwisely) prevails at the present day. To rebuke that spirit harshly, before a generation which is enjoying the fruits of legal reforms, and has, consequently, an ardent desire for a more abundant harvest of the same, would be rash and ill-advised. To deny that the same spirit has wrought out, in the last half century, great practical amendments, both in law and procedure, would be a proof of gross ignorance or still grosser prejudice.

It does not follow, however, that because great good has been done, no mischief has been threatened; nor that because wise proposals of reform are yet under discussion, and awaiting realization, therefore all the schemes of reform now afloat are deserving of encouragement. Each individual proposition for change must be debated and decided on its own merits; one may result in valuable improvement, another in serious injury.

[ocr errors]

Among the various plans of amelioration now before the public, one of the most prominent is to abolish the institution of the grand jury. I propose to make a few remarks on this subject. We are all familiar with the history and functions of the grand jury. Its origin dates back about a thousand years; nor during that long interval has its form varied materially. It consists of not more than twenty-three nor less than twelve “good and lawful men of the county, some out of every hundred; to inquire, present, do and execute all those things which, on the part of our lord the king, shall then and there be commanded them.” Practically, throughout the country, they are usually gentlemen of the highest distinction in the county. Being impanelled and sworn, they constituted a tribunal without whose intervention no person could formerly have been put upon his trial for any offence of the nature of felony. Recently some exceptions have been established by the legislature, which has given summary jurisdiction to magistrates in the case of juvenile culprits.

In all criminal cases the Crown is the prosecutor; sometimes strictly so, as when the offence is of a public nature, or against the state or institutions of the country; but ordinarily in a more formal way, at the suit of the party against whom the wrong complained of has been committed. With respect to all charges involving the liberty or life of the subject, the accused party cannot be put upon his trial until the accusation has been warranted by the oaths of the men of the grand jury. To this it is objected that, however valuable this tribunal may have been in former ages, it is now worthless, and worse; that it is a hindrance and not a help to the administration of justice; that it is cumbrous and expensive; that it gives facilities for perjury, extortion, and fraud; that, whilst it no longer operates as a protection to the innocent, it is used to screen the guilty; that the secrecy of the tribunal renders it irresponsible ; and its constitution and proceedings are such as to make it incompetent effectively to deal with the business it undertakes. I do not deny the validity of these objections ; I would not unduly depreciate their force.

But are they of such weight as to render it wise and politic to abolish an institution which has so long occupied a prominent position in our scheme of criminal administration ? That a system has disadvantages; that its working involves the expenditure both of time and money, which might be saved by its discontinuance; that changes in other administrative departments and in popular habits render some of its functions less important than heretofore; that it is liable, in single instances, to perversion and abuse; may all be true and be freely admitted, whilst the inference that it should be therefore abolished may be resisted as illogical, and resented as mischievous. The question in reference to any law or usage which it is proposed to abandon or rescind is not, Do there exist valid and even weighty objections against it? but, Do the disadvantages overbalance the advantages ? Is it on the whole more mischievous than beneficent in its operations ? Do we buy such benefits as it confers at a cost at once inevitable and exorbitant? Cannot the evils be remedied, the machinery be modified, and its working improved? Can it be made more economical and efficient; less liable to be abused ? For, unless all amelioration is impossible, it may be expedient to retain an institution which, perchance, yet vindicates and exemplifies some important principle, or serves some good practical end; though its significance and value, in both respects, may have been somewhat impaired by the changes which time has wrought.

It is plain that to send witnesses before a grand jury on a bill of indictment takes time and costs money; or, in the words of an objector, is productive of expense and delay. It is admitted that it would be a quicker process, and a cheaper, for the clerks in an indictment office to prepare an information upon which the accused should be tried before the petty jury, without the intervention of any other tribunal. It is contended that the depositions returned by the magistrate should be deemed foundation enough to frame an accusation upon, and sufficient justification for subjecting the man com

, mitted on the charge, or admitted to bail, to his trial before the court with which rests the final decision of his guilt or innocence. It is also obvious that the investigation of the facts by the grand jury is of less importance, now that the general increase of intelligence and education among the magistracy, and the appointment in populous places of professional men to fill the office of police magistrates, have rendered the preliminary inquiry far more satisfactory and complete, and the committals generally more just, than in former times. But the time and the money spent in the administration of justice are objections of comparatively little weight. The most momentous function of the state is to administer justice, and justice cannot be had, any more than any other thing worth having, without being purchased at a cost. To diminish the price at which it is to be obtainedboth as regards time, money, and personal trouble—is very important, but this should be done so as not to impair either the value of the object itself, or our security for its perpetuation among us.

It is said the Grand Jury should be abolished because it furnishes facilities for fraud and oppression, by giving an opportunity to a wicked person to go before a secret tribunal, and without notice to the party accused, to get a bill of indictment found against him, which, whether true or false, may be used as an engine of extortion-further proceedings being abandoned if the prosecutor can be bribed-so that justice is defeated if the defendant be guilty, or an infamous wrong is inflicted upon him if he be innocent. No doubt this is a scandalous abuse of the liberty allowed to an accuser, and a prostitution of the functions of the grand jury. But surely the instances of such abuse are not numerous enough to give the objection much weight. All institutions may be abused -all rights may be used so as to work a wrong—all processes of law may be, and have been, misapplied by the unscrupulous and abandoned. False accusations will sometimes be brought, and false charges sustained by perjury, and this in the court of first resort—the public police court; and before the court of last resort—the judge and jury, as well as before the intermediate tribunal. The remedy is not, therefore, the abolition of these several courts, or the denial to the subject of his right

« EelmineJätka »