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or rather more than when such prisoner shall be let to bail,” requires the Justices to take the examination before committing to ward, and empowers them to bind by recognizance all such as “declare anything material to prove the said manslaughter or felony” to appear at the next General Gaol Delivery to give evidence against the prisoner.
Thus has the power of the Justices of the Peace gradually extended itself until now their examinations are the means whereby the whole of the evidence is collected on which, subsequently, the accused is to be tried. This examination is usually, though not necessarily, a public one (Sec. 19 of the II and 12 Vict., c. 42, declaring that the Court where such examination is held, shall not be deemed an open Court, and that the Justice may order that no one-except the parties -shall be in it); the accused is entitled to be present, to cross-examine the witnesses, call evidence on his own behalf, and himself offer such explanations as he may think fit. According to the old practice the examination of the prisoner himself was also to be taken, and such was in fact done and such questions put to him as were thought necessary down to 1848; though now nothing can be asked of or said to him, except to administer the statutory caution, and a guilty man usually takes the hint so thoughtfully given him, and practices a “masterly inactivity.” As the result of this public enquiry where all interests are duly represented ; at which time the accused is in custody and any injury to reputation from the fact of a criminal charge having been made against him has already been effected; the magistrate may either discharge the accused if he think there is no case against him, or if he think there still remains enough to put him on his trial, or should he plead guilty but be an old offender, commit him. The Inquiry is then handed over to another tribunal specially designed to prevent all this publicity—The Grand Jury. Having heard all that was to be said, for or against him, before his face, the object
now is to find out what the same witnesses-or rather those only of them who have testified against him-will say behind his back; now those actuated by malice against him may indulge to their heart's content, while if disposed to befriend the accused they can speak out freely, without fear as to the result. It seems almost too much of a joke to be true, but it is. All this time the accused (who is really in gaol or bailed out) is supposed to be roaming free as air, utterly unconscious of the impending criminal charge (which has already been made and investigated in his presence), and the Grand Jury are sitting with closed doors in order that he may be saved the vexation incidental to a prosecution, if the evidence laid before them does not disclose sufficient cause for such. Of course, as the accused knows nothing of this Inquiry, he is not present at it, neither are any witnesses allowed to come before it on his behalf, but only the witnesses for the prosecution are examined there, even an accomplice cannot give evidence before them until he has been formally made a witness for the Crown by motion to the Court. With them the preliminary examination before the Justices goes for nothingin theory they know nothing of it—and consequently they can usually make no use of, and have no knowledge of the depositions taken before them; it being an established rule that the Grand Jury ought never to be assisted by the depositions taken before the magistrates, except where they could be read before the Petty Jury (Denby's case, Leach, 580) i.e., in the cases of the death of a witness or of his being so ill as to be unable to travel; and should a witness refuse to give evidence before the Grand Jury, they cannot use his deposition to enable them to find the Bill (R. v. Rendle, 11 Cox C.C., 299) unless his refusal or absence has been by procurement of the prisoner.
At the Gaol Delivery for the County of Surrey, held at Kingston in March, 1789, a person named Edwards was in
the Calendar of commitments on a charge of having burglariously entered Lambeth Palace, the residence of his Grace the Archbishop of Canterbury. A witness named Denby, who had given evidence before the magistrates, on being produced before the Grand Jury "prevaricated in such a manner as to induce a very strong suspicion that he had been tampered with on behalf of the prisoner.” The Grand Jury therefore applied to the Court for the witness' deposition taken before the magistrate ; but Gould, 7. and Hotham, B. refused the application, on the ground that as the best evidence was the viva voce testimony of Denby himself, they could not abandon that, and resort to the secondary kind of evidence resulting from his written depositions—and a similar course had been pursued by Gould, J., at a previous Essex Assizes (1 Leach, 514).
So secret are their whole proceedings supposed to be, that it was formerly deemed felony, for any of the Grand Jury to divulge the names of persons whom they were about to present.
In Georges' case in the reign of Edward III., 27 Le Liver Des Assises and Plees Del Corone, Pl. 63, Georges was indicted in the King's Bench, for that he being one of the Indictors (i.e., one of the Grand Inquest or Grand Jury) who had indicted certain persons of divers felonies, and being minded to discover the King's Counsel, had openly made known who certain of those parties were who had been indicted. And Street said that some of the Justices wished to hold this to be treason, nevertheless, he was arraigned simply for the felony, and was acquitted.
Coke, in his Third Institute says, that it is now agreed that such discovery is neither treason nor felony, "and the rather, for that no person ever died for such discovery." “But certain it is, that such disclosure is accompanied with perjury, and a great misprision to be punished by fine and imprisonment."
The Grand Jury being a secret tribunal, whose office is simply to frame accusations, and possessing no power, nor having cast on it the duty, of trying those against whom Bills are presented, is not of course bound by any of the rules of evidence applicable to the proceedings of tribunals for the trial of the guilt or innocence of the accused. They may, therefore, avail themselves of any sources of information that come within their reach, and act upon them or not, as they think fit; they may even read a paragraph from a newspaper (per Byles, J., Reg. v. Bullard, 12 Cox C.C., 353) look at the depositions of absent witnesses, without any proof that they were regularly taken (per Denman, J., Reg. v. Currans, 13 Cox C.C., 158) or trust to mere public rumour for the purpose of finding Bills. Such Indictments are perfectly good, and, according to the practice both of this country and of America, are not vitiated by the fact of the Grand Jury having received evidence that would be irrelevant or incompetent on the trial of the Indictment (Hope v. The People, in New York Court of Appeals, January, 1881). In the case of the notorious Dr. Dodd, who was tried at the Old Bailey in 1777 for forgery on the Earl of Chesterfield, Lewis Robertson had been charged as an accomplice with him in the forgery. Having presented a Bill against Dodd, the agents of the prosecutors obtained an order from the Clerk of Arraigns at the Old Bailey, directed to the Keeper of Newgate, to take Robertson before the Grand Jury, for the purpose of giving evidence in support of the Bill against Dodd; and a Bill having been found, it was objected to on the ground that the order was void, and also that the accomplice had not been admitted as a witness for the Crown. On consideration by the twelve Judges it was resolved, “that the necessity of some proper authority to carry a witness, who happens to be in custody, before the Grand Jury, to give evidence, regards the justification of the gaoler only; but that no
objection lies, upon that account, in the mouth of the party indicted ; for in respect to him, the finding of the Bill is right and according to law.” It had also been held by Lord Denman and Wightman, J., on the Northern Circuit, that an incorrect mode of swearing the witnesses to go before the Grand Jury, would not vitiate an Indictment, as the Grand Jury were at liberty to find a Bill upon their own knowledge merely, a ruling subsequently confirmed by Gurney, B., in Reg. v. Russell, Car. and Marsh, 247.
“The Grand Jury (wrote Bentham) is a judicatory not presided over by a professional and permanently existing official person, a Judge; but a company, a miscellaneous company of men, selected on the presumption of possessing a certain degree of opulence, in number from twelve to twenty-three. To pronounce a decision in favour of the demand, twelve, but not less than twelve, are sufficient. But here the information furnished is put upon the footing, and bears the character and denomination of evidence. Here, then, is a mass of evidence. What next becomes of it ?-is it never acted upon ? No, never. It is uniformly let drop and forgotten; all the use made of it is the enabling this majority, if such be their pleasure, to send the cause to be tried upon evidence not quite so sure of perishing, by a Judge or Jury in the same manner as an action as above is tried. And this in many cases with needless delay; as also in length various.
Now, in this preliminary operation, by which during a course of several days perhaps, from twelve to twenty-three persons have been occupied in the situation of Judges, besides an altogether unlimited number in the character of witnesses. What is the use ? Answer: Absolutely none. What is the effect? To enable these twelve or twenty-three esquires, as they are called, to afford impunity without reproach to every malefactor to whom it suits their purpose to afford this encouragement to crime. Yes; such is the purpose, if not