The Evening critic., 1882-05-03
Tho Law Regulating Inquest by
Grand Jury.

sioners, in 1876, which was a civil suit in
stituted for the purpose of recovering from
the County of Wake certain witness fees,
the Court said witnesses are not en-
titled in the first case because there is no
authority of law to summon aud send them
before the Grand Jury upon mere matters
of inquiry, n power which, if allowed, is
capable of the grossest and most oppressive
abuse, coupled with great temptations to
abuse it.
"The object sought in sending the wit
nesses in this case before the Grand Jury
was to enable that body to ascertain
whether the witness knew of any violation
of the criminal law, and if he did, to
make presentment of it to the court
" Properly, a presentment is tie notice
taken by Grand Jury of any oflense, from
heir cum knowledge or observation, without
any bill of indictment before them. 9
Inst, 739 l Chit. Grim. Law, 162; l Bish.
Or. Pro, 731."
In England almost every offender
brought before the court for trial has, in
the first instance, been examined and com
mitted OF bailed by a magistrate in the
ordinary way, having been brought before
him by police officer on his own judg-
ment or on the complaint of some private
individual; though cases do occur where
an offense is presented by the Grand Jury,
without preliminary notice, against an alb
sent party, "a mode of proceeding, how.
ever" says Brown, (which is not conf
monty resorted to, nor expedient." Com.
Law, 991; A b., 301; Cody, 81.
The English practice which thus re-
quires a preliminary investigation where
the accused can confront the accusers and
witnesses with testimony and have coun-
sci, is more consonant with justice and the
principle of personal liberty.
The powers of the Grand Jury, there
fore, should not be extended farther beyond
these conservative and salutary principles
than is clearly warranted by public neces.
sity and the most approved precedents. A
prosecuting officer has no right, of his own
motion or that of an ofiicious if not
intermeddling and malicious prosecutor to
send witnesses to the Grand Jury room
merely to be interrogated whether there
has been any violation of the criminal law
within their knowledge.
The law denounces such inquisitorial
powers, which may be carried to the extent
of penetrating every household and expos
ing the domestic privacy Of every family.
The rcpose of society, as well as the nature
of our free institutions, forbid such danger
Gus mode of finquisition. While the Grand
Jury may thus proceed in prosecutions in
stituted by themselves, upon their own
knowledge and observation, private indi-
viduals who may desire to prosecute Of
tenders, have the right to inform the solicit
tor and have him to frame q bill of indict
ment against the accused, indorsing upon
it the name of the prosecutor as such, with
such other witnesses as he may desire and
the bill with the WITNESSES to the Grand
Jury. The real prosecutor thus becomes
responsible for the costs of criminal ac-
tion which he has instituted. As general
proposition it is not advisable for the pros
ecuting officer to send bill to the Grand
Jury, without indorsing upon it the name
of a prosecutor, except upon presentments,
or when the parties have been bound over
by committing magistrates, or where the
solicitor is directed by statute to send bills
for particular ofenses. In these latter
cases the prosecutions must be assumed to
have been instituted on good cause and
fiom proper motives, as well as upon due
deliberation.
The course OF procedure hereinbefore in
dicated as the proper one will have the
effect of bringing to justice all notorious
offenders and all Others that society may
deem worthy of prosecution, and at the
same time protect the public against
frivolous or malicious prosecutions and the
attendant costs.
1t was stated on the argument that q
serious accumulation of costs had accrued
to some of the counties from the compensa.
tion allowed to witnesses summoned and
sent before the Grand Jury upon matters oi
inquiry. The practice is unwarranted by
law, and such witnesses are not entitled t.
pay for their attendance. So far as this
and other practices equally Objectionable
afe followed by solicitors it will not b.
amiss to say this much. A solicitor is no
a judicial officer He cannot administer az
oath. He cannot declare the law. He can
not instruct the Grand Jury in the law
That function belongs to the Judge alone
II the Grand Jury desire to be informed o
the law, or ether Of their duties, they mus
go into court and ask instruction from tn
Bench.
SO the solicitor has no business ia th
Grand jury room. lie is not componen
part Of that body. 1t is true the Gran
Jury iS component part of the court, bu
il is an independent and self-acting body
clothed with the very highest functions
and as such is responsible to the law an
to society. None but witnesses have an
business before them. No one can counsC
them but the court. They do not CON
municate with the solicitor, but with th
court, either directly or through an oliise
sworn for that purpose. They act upo
their own knowledge or observation i
making presentments. They act upo
bills sent from the court with the wit
nesses. The examination of witnesses
conducted by them without the advice {
interference of Others. Their fndinl
must be their own, uninfuoneed by ii
promptings or suggestions Of Others, or b
opportunity thereof We know that the
have been wide departures from the pril
oiplts here announced in this aud perha
in other judicial districts. II has beeon