ORIGIN OF THE GRAND JURY.
The grand jury is of Saxon origin, and its existence may be traced as far back as the tenth century. Its object is one of inquiry rather than of trial, and for this reason it is frequently called a “grand inquest.” Under the old practice the grand jury originated inquiry without the intervention of any public officer, and any citizen was at liberty to appear before it, state his own wrongs or the offences of others, or make complaints against public evils of any kind. It partook of the nature of a legislature or common council, to which any citizen may submit a petition. Any member of the grand jury who happened to know or learn of an infraction of the law could lay the matter before his associates for their action. I am informed by good legal authority that this is still the practice in England and in parts of the United States. But the practice of New York, so far as the city is concerned, has of late been for the grand jury to consider nothing that was not submitted to it by the district attorney, and for that official to submit nothing that had not reached him from a committing magistrate. There is both good and evil in the practice, and on the whole, much more evil than good. A great many offenders have gone unwhipped of justice in consequence of this system. Men who have just cause of complaint against other men high in power have sought in vain to bring their cases before a committing magistrate, for the reason that the latter was the friend or dependant of the accused, and would use his official position to protect him.
Several cases of this kind were brought to my notice while I was sitting on the grand jury. For example, a man one day came to me with a request that I would bring to the notice of the grand jury a certain case which he explained. I asked him why he did not go before a committing magistrate with it. “Why,” he replied, “because the committing magistrates are all friends of this man, and would do anything he wants. He can get any kind of ‘justice’ he desires, and nobody can do anything against him.” I am satisfied that his opinion of police magistrates in New York city was not altogether baseless, and, if I am not mistaken, other testimony could be found to the same effect. With the reputation or lack of it that belongs to our local judiciary, it is eminently necessary that all grand juries should be clothed with the power that makes them grand in quests, and enables them to investigate any charge of wrong-doing without waiting for its submission by a police magistrate. I am satisfied that there are many scoundrels whose career of wickedness would be materially curtailed if they knew there was full opportunity for their accusers to go before a grand jury and furnish the proper information for a criminal indictment.
WHAT A GRAND JURY DOES.
The testimony before a grand jury is of an ex parte character. Blackstone says, “They are only to hear evidence on behalf of the prosecution. For the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes, and not to rest satisfied with remote probabilities—a doctrine that might be applied to very oppressive purposes.” The petit jury gives the accused the opportunity to sift the ex parte evidence on which he has been indicted, and of explaining or contradicting it. The general rule for the guidance of a grand jury is, that they must be as well satisfied of the guilt of the accused, in order to find an indictment, as they would be to convict as petit jurors in case none of the evidence before them was explained or contradicted. It often happens that complaints are presented of an avaricious or malicious nature, or with some other motive than the proper enforcement of the law. Such cases require careful inquiry and cautious action.
Early in the session of the grand jury of which I was an integral part, a complaint was made against a baggage agent of a steamboat company for taking money for extra baggage, and neglecting to pay it over to the authorized agent of the company. At its commencement the case appeared reasonably clear, but a suspicion arose that the complaint was malicious, and more evidence was called for. Each additional witness confirmed the suspicion, and it finally came out that the principal accuser had long desired the situation of the accused, and had been appointed to it after the removal of the latter. Here was a motive in which malice and avarice were evidently the principal elements, and when the matter was put to a vote the jury promptly dismissed the bill. The testimony of the complainant was not fully sustained by that of the other witnesses; and even had there been no display of malice, the evidence was not sufficient to secure conviction before a petit jury.
SECRETS OF THE JURY ROOM.
I wish to remark, en passant, that where I mention cases that were before us, without giving names and localities, I shall purposely, in most instances, change the story in such a way that the outside public cannot trace it, even with a careful research into the records of the police or other courts. My brother jurors will recognize each case described, but the veil of secrecy thrown around the grand jury room will not permit me to be rigidly precise. Great injustice might be done, in many instances, by a complete revelation, and therefore the reader must be left in the dark to a certain extent. He may look upon the cases I give him as exact parallels, and nothing more. When I say a man was charged with stealing a horse, you may know that he was charged with stealing something, but whether horse, cow, or cooking-stove, it is not necessary to explain in describing the work of the jury. And with this apology for harmless but very necessary fiction, I proceed.
It is not at all times proper to dismiss a complaint when caused by malice. One day a man came before us, who swore that another man had swindled a large establishment out of considerable money; he did not make the complaint on behalf of the parties defrauded, but in the interests of justice. His malice was evident; he made no attempt at concealing it; but he sustained his testimony with documentary evidence and the sworn statements of other witnesses. The jury doubted about the propriety of ordering an indictment under the circumstances; some of them argued, that had no quarrel occurred between the parties, the case would have slumbered, and therefore the complaint should be dismissed. There was such a divergence of opinion that the district attorney was called to tell us what to do. We explained, through our foreman, the nature of the case. The district attorney, who is at all times the legal adviser and instructor of the grand jury, listened, and then said, substantially,—
A SYMPATHETIC COMPLAINANT.