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Trial of Colledge, in 1681, there is the following :-"Now, to go on with this hedge libel ; 'and by a secret management shut up with the Grand Jury till they found the Bill.' A, bailiff at the Grand Jury chamber door, to let in those that have business and none else, is a manager of secrets. Do but observe the hot and cold dealing. In Rous's case it was a privilege to be secret, and now it is management. The malicious and false insinuation is that the Grand Jury chamber, being free for all comers, as an open Court of Trials is, yet, in this case, it was shut up for management. O! woeful law divine, that doth not know that place is always close, and not open to any that are not called, or have no business; and that no defences being heard, only the prosecutors and their witnesses attend to show that there is reason for the prosecution. And how could these men, as they are sworn, keep the King's secrets and their own, if they were not close. If all people might come in at such examinations, prisoners would have spies upon the testimony, which would be of ill consequence.”
The privacy for which the Grand Jury so stoutly contended in the Earl of Shaftesbury's case may be taken to be completely assured now-a-days; the case just mentioned being in Mr. Justice Christian's opinion the last instance of the public procedure. Even now a prosecutor may wait till the Grand Jury has assembled, and without notice to the accused, present a Bill of Indictment against him, without any preliminary enquiry before justices, except in the cases comprised within the Vexatious Indictments Acts, in which the consent of the Judge must be had, or the prosecutor have been bound over, or the accused committed. And even if the justice has refused to commit, the prosecutor may still insist on being bound over, and prefer his Indictment, subject to the payment of costs in the event of an acquittal (30 and 31 Vict., c. 35, sec. 2). This Bill is supported by secret evidence, and when found by the
Grand Jury the prosecutor may, at the end of the Sessions or Assizes, on payment of one shilling, obtain a certificate of the fact from the Clerk of Indictments, and upon
the production of this before any justice within whose district the accused is supposed to be, obtain a warrant for his apprehension, when he must either go to prison or find bail for his appearance.
Under such circumstances, it is undoubtedly open to a malicious prosecutor in this way to gratify his malice; and instances are not wanting in which advantage has been taken of the prejudices of Grand Jurors to prefer utterly groundless charges against individuals. The case of Mr. Blundell, of Ince, is a conspicuous example, where, taking advantage of the prejudices of the Grand Jurors in Lancashire against the Roman Catholics, a True Bill for murder was returned against him for causing the death of an old woman who, returning from market, was pitched out of her donkey-cart into a hole, in a road running through the Ince estate, which had been left insecurely fenced by some workmen, and thereby breaking her neck, and hastening the donkey's end. He was tried at Lancaster, before Baron Wood, who directed an acquittal on the opening, and immediately sent for the Grand Jury; but they had already been discharged, and so were not rebuked.
But though a prosecutor is entitled in most cases to prefer a Bill directly to the Grand Jury, it is but fair to state that the usual, and, in some cases, the compulsory, course is too initiate criminal proceedings by an application to, and subsequent examination before, a magistrate, at which the accused is present and entitled to be heard. The cardinal principle underlying the whole system of the Grand Jury was that the reputation and the personal liberty of the subject were of so much importance that neither of them ought to be jeopardised, unless and until the fama publica of the neighbourhood as represented by the Grand Jury raised
so violent a suspicion that a citizen had committed a crime, that he ought to be put on his trial. Until such presentment was made there was no legal warrant for his apprehension ; but he was supposed to be ignorant of the fact that anything had been laid to his charge, and was in the full enjoyment of his liberty. Hence the absolute secrecy attending all the proceedings of the Grand Jury, which served the double purpose of screening men's reputations in the case of unfounded or trifling accusations, and of preventing the escape of the guilty by the acquisition of timely information, when the charges were deemed well founded. That this principle was openly violated by the State when it suited its purposes to do so is true. In the State prosecutions of the 17th century this iniquity was perpetrated on the specious, but utterly untenable ground, that the King may dispense with the secrecy of his counsel exacted by the Grand Juror's oath ; which, though true enough so far as it goes, was not the less a flagrant violation of the other and fundamental principle on which the whole institution rests, viz., the preservation of the liberty and reputation of the subject. When once a True Bill had been found, the reasons for preserving secrecy were at an end ; and forthwith a warrant was obtainable for the apprehension and incarceration of the accused, unless he could find bail to answer for his being forthcoming to take his trial. The evils attendant on such a state of things are thus enumerated by Bentham :
“Without the fiat of a Grand Jury, for example, caption of the prisoner could not take place; and, except at the metropolis, no Grand Jury sat, but at the Assizes; and the Assizes were not held oftener than twice a year in any county, nor than once in some counties; nor in any county did they last more than two or three days; and, suppose the caption effected, trial could not take place till the next Assizes. What, as to offences, were the conse
quences ? Abundant as they were upon the continent, criminal offences, speaking by force, were in England in still superior abundance. In the time of Henry VI., Fortescue, then Chancellor, takes notice of this superiority, and makes it matter of boast. In the reign of Henry VIII. (as may be seen in Barrington's Observations on the Statutes), no fewer than 72,000 individuals suffered death by hanging - about 2,000 a year upon an average; this, out of a population not half so great as at present.
“Of the marriage of Queen Mary with Philip of Spain, one consequence was—the putting England, in this respect, upon a level with the continent. Rome-bred was the species of law by which the continent was then, as now, principally governed; and, under Rome-bred law, persons accused of crimes, might be apprehended at all times. By a statute of Philip and Mary, this power was given to Justices of Peace. In the case of a criminal suit, thus was caption, with commitment accelerated; still trial remained at an undiminished distance. But, how inadequate soever to the purpose of deterring others—commitments made in this mode would, of itself, so long as the incarceration continued, give effectual security as against future offences on the part of the same delinquent; for, while a man is in gaol, he cannot commit crime out of it, sagacity neither was nor is wanting to peceive this incontestable truth” (Abridged Petition for Justice, by Bentham).
The 34 Edward III, passed in 1360, conferred upon those assigned for the keeping of the peace, in every county of England, "power to restrain the offenders " and "to pursue, arrest, take, and chastise them according to their trespass or offence," and to cause them to be imprisoned and duly punished according to the law and customs of the realm, and according to that which to them shall seem best to do by their discretions and good advisement," and "to take and arrest all those that they may find by Indict
ment, or by suspicion, and to put them in prison ;" to take surety for good behaviour of all those not of good fame, “and also to hear and determine at the King's Suit all manner of felonies and trespasses done in the same county." In 1483, the i Richard III., c. 3, recites that “ divers persons have been daily arrested and imprisoned for suspicion of felony, sometime of malice and somtime of slight suspicion, and so kept in prison without bail or mainprise, to their great vexation and trouble," and ordains that every Justice of Peace shall have power “by his discretion” to bail persons so arrested. Four years later the 3 Henry VII., c. 4, alleges that by colour of this Act of Richard III., “divers persons such as were not mainprizable, were oftentimes let to bail and mainprize by Justices of the Peace, against the due form of the law, whereby many murderers and felons escaped." It then repeals the power given to one Justice to bail, and ordains that the Justices or any two of them at the least," whereof one to be of the quorum," may bail prisoners who are bailable, and that they shall certify the same to the next Sessions or Gaol Delivery; and the Sheriffs or other Keepers of Gaols shall certify at the Gaol Delivery the names of prisoners.
In 1554 the 1 and 2 Philip and Mary, c. 13 (the statute referred to by Bentham in the extract already given) provided that the Justices, before bailing any prisoner brought before them on a charge of manslaughter or felony “ shall take the examination of the said prisoner, and information of those that bring him of the fact and circumstances thereof, and the same, or as much thereof as shall be material to prove the felony, shall put in writing" and certify it at the next General Gaol Delivery (Sec. 4.) Then the 2 and 3 Philip and Mary, c. 10, in reference to prisoners
suspected of manslaughter or felony and committed to ward and not bailed, in which case the examination of such prisoner, and of such as shall bring him, is as necessary,