however, be admitted that the danger is one which, to some extent, is inherent in the object which the enactments are designed to accomplish. No machinery that the wit of man can devise, can ever make the unsuspecting and ignorant a match for the crafty and unscrupulous, or impart knowledge of a fact to the person to whom it is material to be known, or prevent the person, whose interest it is that the secret should remain undivulged, from availing himself of the advantage which circumstances may afford him. It is equally difficult to counteract the evil by attaching invalidity to the taint of fraud, unless some better means than have yet been devised, can be discovered for unmasking the secrets of the human heart, and testing the motives of human conduct. It is impossible to predicate that any amount of precaution and deliberation will prevent the community from having to bewail cases of hardship, when the " tempus constitutum " has at last arrived for closing the door of justice, and returning to all applications the unchangeable reply, "It is too late."

ART. III.- CRIMINAL PROCEDURE.

PART II.- Crown Counsel. Grand Juries. The Examination and Protection of the Accused.

IN

N our last Number we pointed out the necessity for a public prosecutor in our system of Criminal Procedure, and showed that such an official would be quite competent to deal with the ordinary charges which make up the chief part of our criminal business. It was, however, at the same time admitted that a certain small proportion of the offences annually committed are of so grave a nature, or afford such difficulties, either in fact or law, as to require the supervision and control of a higher and more responsible authority.

In these cases it would be necessary that recourse should be had to some superior official, of acknowledged ability, upon whose opinion the public prosecutor and the justices would be empowered to act.

If our executive possessed a properly organised department of public justice, such cases would, of course, be at once sent up to it, and would be referred, probably, to one of the standing counsel, who would be attached to the department. But until such a department has been constituted, the following expedient, which has the merit of simplicity, might be safely adopted. Theoretically speaking, the Attorney-General for the time being, is the minister of public justice in this country, though virtually he discharges none of the functions proper to this important office, except on occasions where the alleged offence is of peculiar gravity, or involves questions of State.* Indeed, the number and high nature of his other duties render it impossible for him to look after and attend to the details of a business so vast as that which is transacted in our criminal courts. Some approach, however, to the efficient discharge of these duties would be made by the appointment of, say, two able criminal lawyers to act as Crown counsel under the direction of the Attorney-General. To these Crown counsel would be referred all the cases, questions, and statements on criminal matters sent up by the public prosecutor or examining magistrate. In all ordinary cases, of which examples will be given in treating of the subject of grand juries, these officers should be authorised to return the papers with their opinion on them, to the justices or prosecutor seeking advice, and every such opinion should be considered instructions as to the course which is to be taken. In all charges of moment, or when any point of serious difficulty suggests itself to the Crown counsel, the papers would be reserved for a consultation with the chief, as is the case in the criminal administration in Scotland. Here the Advocates-depute meet the Lord Advocate twice a week, for consultation upon any questions of

* Evidence of Horatio Waddington, Esq., Under-Secretary of State for Home Department. Report on Pub. Pros., Q.Q. 21, 24, 27.

difficulty that have arisen in their several departments, and this part of the machinery is stated by an eminent authority " to work remarkably well."* The appointment of these officers would, in fact, be an important step taken towards the creation of a ministry of justice, and would get rid of many serious defects in the higher branches of our criminal executive. The scope of their duties would necessarily be limited to the proceedings before indictment, and the important guarantee they would afford for the due administration of justice will be shown in our remarks on grand juries. It is plain that a post such as this requires qualities of no ordinary kind. The men who are to fill it fitly, must be men who have commanded a large experience in this special branch of their profession. They should be quite independent of any political changes. The office should be permanent, and the salary so liberal as to secure the services of competent criminal lawyers.

Hitherto we have suggested additions to our system of Criminal Procedure. We now take in hand a duty of a far more delicate nature, which involves the removal and reconstruction of the most ancient and venerable portion of its fabric. The grand inquest of this country is looked upon by the people not only as a great bulwark of the constitution, but as a necessary instrument of public justice. In its present condition it is, in fact, at best, nothing more than a picturesque and cumbrous ornament. Let it not be supposed that we forget or overlook its past services. It has justly earned a high place in the affections of the English people. For it has served an important purpose in the history of our jurisprudence, and its indirect influence upon our political history has been of marked value. At a time when the boundaries of English law were scarcely defined, it jealously maintained each new landmark as it was set up. At a time when the power of the sovereign was dominant, when the power of the people was gradually growing with painful struggles, it stood forth between the

executive and the subject, and aided greatly in establishing that well balanced democracy, which has made it the greatest of all political blessings to be an Englishman. To-day, indeed, the principles of civil freedom are too firmly planted in this country to fear any attack; and the political functions of the grand jury may be fairly assumed to be at an end. It is, however, a wholesome conservatism that protests against its destruction. Times may again come in which the privilege of our country gentry and chief men to meet at the assizes, and present such matters as may touch the peace, prosperity, or happiness of the people, may prove of great importance. There is something more than mere parade and show in the coming of magistrates and county folks to meet the judges on the opening of each commission. Mr. Napier, in his evidence before the Select Committee on Public Prosecutors* justly dwells upon "the great importance of bringing the country gentlemen to take an interest in the state and good order of their neighbourhood." Even in our busiest manufacturing counties this class still occupies, and must always retain, a most important and influential position. Its local power must always be great, and occasional conferences between its members on the internal economy, the social or moral condition of their respective districts, cannot fail to do good. We should, therefore, oppose any change which interfered with the meeting of the grand jury at assizes. We agree with Mr. Hobler,† that, "even if only sworn in the first day, as is the case in the Queen's Bench, and then called in to be discharged," they should always be required to attend. But, whilst retaining the grand jury at sittings under commissions of Oyer and Terminer and Gaol Delivery, we would largely curtail their quasi-judicial functions, even on those occasions: and we would entirely dispense with them at all sessions of the peace in both counties and boroughs. At sessions they are not merely useless, they are absolutely

* Question 1,954.

† Evidence before Select Committee on Pub. Pros., Q. 1,813.

mischievous. They answer no social or political end; and, as legal tribunals, they only hinder, at a large expense of public money and private convenience, the speedy and efficient administration of justice. A number of manufacturers, merchants, and tradesmen-of whom a large proportion are imperfectly educated, and all of whom are ignorant of the most rudimentary principles of law-are called together to exercise an uncontrolled supervision over the careful and deliberate decisions of the justices in petty sessions. The only materials with which they can deal are the witnesses and the depositions already taken before those justices, by a clerk, who is, in most cases, experienced in the practice of criminal law. They are assisted by no adviser, but are expected to discover discrepancies, errors, and contradictions, in the body of evidence which has induced the Bench to commit. True, it is, they do frequently detect contradictions on the second examination of a witness, which lead them to throw out the bill. But in most of these cases there has been collusion of some kind or another; and the empirical and unskilful inquiry has only produced a failure of justice. The prosecutor has been tampered with, or a witness has been bribed. We have reason to believe that in many instances the whole charge is a "plant" by one criminal to get his expenses as a witness. As soon as the indictment is preferred, he has nothing more to gain, and he wilfully breaks down. Two recent examples within our own knowledge will show how much harm the grand jury at sessions can do, and how powerless they are to prevent a failure of justice.

At the sessions held in November, 1862, for a large borough in the north of England, an indictment was preferred against a prisoner, charging him with felony, under the following circumstances. He had eloped with the prosecutor's wife, and some of the prosecutor's property, from a town in the north of Yorkshire. The prosecutor had followed them to the sessions town, and obtained the arrest and committal of the prisoner. But,