^*?>^. IMAGE EVALUATION TEST TARGET (MT-3) /. .>^ €P. >" W^ " V <; % % # 'p- y. V. u. 1.0 I.I 22 2,0 llllli^ (;4 1.8 1.25 1.4 1.6 ■* 6" ► % <^^ /# ^m '^A e. the test, the common-sense test, of utility and fitness. Change merely for ciiangc sake is always objectionable, but cautious, gradual, permanent reform, l)ased on experience, and for the love of excellence, must commend itself to every thinking man. " Home forty-six years ago I entered on judicial life with something of the feeling that ' all things are good when old,' and I look back on nearly forty- one years of continuo is judicial service with opportunity for seeing the actual working of the (!rand Jury system, during that time having had occasion to meet these bodies rarely less frequently than four times in the year — some- times as many as six or seven. I may be excused this reference to myself, my object being to show I am able to speak from ample opportunities for observ- ing. What honorable gentlemen may think of my conclusions I know not. I will only say they have not been hastily formed. " My impressions gradually settled down into the conviction that the Grand .Jury hid survived its usefulness, and a study of the .Scotch Public Prosecutor system, which has worked well and satisfactorily for centuries, confirmod that view, and suggested the advantage of applying it, in modified form at least, to criminal procedure in C.mada ; for I quite agree in an obser- vation made by the learned Chief .Justice of Ontario, nride to a Grand Jury in 188), that ' it is quite impossible to dispense with the institution until some very careful substitute is found.' I submit, liowever, we have an admirable model in Scotland, one long tried and thoroughly tested, and if the wisdom of a scheme is to be measured by its successful working, that of public prose- cutoi's in North Britain commends itself for imitation and adoption. " Honorable gentlemen will know that the main and primary function and duty of our (iraml .Jury is, in etfect, to determine whether the magistrate, stipendiary or ordinary, who lias committed a prisoner to jail on a criminal charge after hearing the evidence against him, hail .any justification in subjt ct- iny; tiie prisDuer to trial — whetlier, in fajt, the cominittiug justice had or had not perverted his duty and oiniiitted a prisoner f n" trial up in a chargj u.j- SuppDrted even by juiin-i fitci-i testin^ony. " Stipendiary niagistrates, in Ontarii), at- all events, are ahle and experi- enced lawyers. Tiie ordinary justice of tlie peace may not always be fully up to the mark, but each and all constitute trilninals competent to commit an alleged offender to jail to await his trial, and we must suppose the appointing power (wherever it may reside) tal. advance the saving of money as a cogent reason in itself against the instii .tion, but certainly an improved, a safer and more efficient , system, modelled something after the Public Prosecutors in Scotland, could be obtained with a smaller outlay, If (irand Jurors were not required it would leave more material free from which to select the petit jury, which everyone will admit is the more important one of the two — the one tluit finally decides upon the guilt or iiniocence of the accused. "It has been urged that the Grand Jury system is an educator of the people, those serving as fJrand Jurors gaining a certain knowledge of law and a right conception of its salutory influence, wliich tliey l)ecome agents in diffus- ing in their neighborhood, and thus inspire the public with more respect for the law and its administration. Perhaps so, and a nuin in a lifetime may have two or three opportunities for gaining such knowledge ; but it must be honne- pathic in an\ount, and it seeins to me tliat an intelligent reader of one of our great dailies, which rarely fail to give full and intelligent reports of important cases, would gain much more information at his own fireside. " The Grand Jury system, I know, is regarded by some as * a great bul- wark of our liberty,' a representative and democratic institution. It is an ancient institution, no doubt ; but I fail to see how it can deserve the name of a democratic institution — how it can represent even the county from which it comes, except by a legal fiction, and I can discern no propriety in a grand, or any other jury, fulfilling a sworn duty 'in accordance with the public will.' In the dark days of England's history it may have stood between the people and arbitrary power. I think Hallam mentions one case, not with approval — indeed, he rather thinks they forgot their oath ; but few in the present day fear that arbitrary power will venture to raise its hand in the courts or else- where ; and if it did the people of this cnmitry would not, I am very sure, fight behind the feeble barricade of a nioden (Urand Jury. " ' Popular liberty' and 'popular rights' are happily established in this country on a sure basis, and are understood and valued, and I must utterly deny that Grand Juries are in any sense or to any extent the palladium of either. Possibly this clinging to a worn-out institution grows out of the fear that the country could not supply its place, but I have all confidence that an honest and non-political substitute may easily be found. NN'hy should we Canadians have any fear on this head ? The history of our country has shown that the people of Canada are keenly alive to the value and importance of the due administration of justice, and prepared to upliold it — no country more so in the whole British Empire ; and, 1 will venture to add, no place where a larger proportion of able and honest agents, fitted l)y professional traim'ng for administration, can be found. In the year 1877 I called public attention to some of the evils I have pointed out in the Grand Jury system, and also to facts going to show it was discredited — that even then a large number of criminal cases never came before Grand Juries, but were tried by a judge, without a jury, upon an act of accusation prepared V)y the local crown attor- neys from the depositions taken before the committing magistrates. I said : % \ " ' It may be noted that now, as a matter of fact, l)y fur tlie greater nuni- l)er of criminal eliargcs in (yntario are Hulimitted for trial on an act of accuHa tion, in t lie nat\no of an indictment, which tlie connty crown attorney pre- pares, the intervention of ali<^ o|)inion ; and, indeed, it caiinr)t lie doubted that tluu'e ai'e ample means o' ascertaining the balance of oublic judgment at om.e ([uicker and more trust- worthy in their action. What other purposes do (irainl Juries servo? They have functions, as ])arts of our machinery of criminal justice, which are generally useless, or injurious oidy as imputing the action of the courts ; but, as the case of Sir l-'rancus Truscott proves, they are sometinujs positively mischievous, exjiosing an innocent num to all the annoyance and disrepute of being subjected to a crinnnal trial upon evidence altogether insuflicicnt to sustain such a charge. They never serve a good pujimse, and at times they serve a bad one. 'I'll is ought to be sufficient to ])rocurc the abolition of an institution that has lost its use. Hut old institutions die hard among lis, especially if, though their use has departed, they add any touch of dignity or of onuiment to the life of rural denizens. " ' We pass by at once the notion that (irand Juries are of any value as exponents of public opinion. " ' It is with (irand Juries as a part of the machinery of the criminal law that we now have to deal. The purpose of their existence in this character was to correct the errors or imperfections of the acti jiis of local benches of magistrates. A ma^jistrate or magistrates in pettv sessions might conniiit a man for trial upon evidence that did not even rai-^o o. prima Jacic case against him, and the (irand Jury might stop the case from going further by finding that no true bill had l)een estaljlished against the accused. On the other hand, it might conceivably happen that a local bench would wrongly decline to send for trial a person against whom a suHicient case had been established, and the conij)lainant could then go before the Grand Jury and, by convincing them that he had evidence enough to require a trial to be heard, could obtain a true bill from them. Is either of these purposes of any value now ? W'e cannot say that no magistrates ever conunit a man for trial upon evidence that does not estaldish a prima facie case ; but when the accident happens there is no saving of time of any importance in getting the prosecution (juashed before a (irand Jury, while this mode of obtaining the result is always unsatisfactory to the accused. The hearing of the (irand Jury is in private, and the baseless character of the evidence on which the charge is founded is thus never publicly demonstrated. Suspicion may always arise — and not unfre([uently does arise, in such cases — that the evidence for the prosecution was somehow numipulated in the (irand Jury room, so as to lose the force it had at the preliminary investigatifin before a magistrate. We do not suppose this ever does happen ; if it did it woidd furnish an additional argument against the machinery ; but the result is that an unfortunate man, against whom we must assume there was no case whatever, remains under a cloud from which he is never properly cleared, The feeling of inadecjuacy of this private investigation was, we believe, the leading motive that led the late Recorder of Loiulon, Mr. llussell (furney, to condemn so strongly the retention of (irand Juries. The other side of their action is at least ey its existence, prove an impediment to the prompt dificharge of judicial funcitions.' "On the very grounds referred to in this article I had years before argued for the abolition of (irand .luries, and tiie fact of Sir Francis Truscott's case showed a particular evil 1 indicated as possible having actually occurred. " What I said from time to time to Cirand Juries was not with any desire of an expression of opiiiio'n from these bodies, l)ut as the means of directing public attention to tiie subject, and promoting, if pos8il)le, an enlightenecl discussion. My object was, to a certain extent, accomplished, and the matter was freely discussed in the public press some years since. " (Irand Juiies I addressed in every cas^ adopted the views I presented ; but like bodies, I must say, di aholition of the (irand .Inry tii every one of these liodies who'n he had the honor to address, and asked their opinion, that it might he sent,, as «ns to think that gr-and juries could be made use of as a most excellent irrstitutiorr, per'for'rrring a most important furrction in the administr-ation of justice, and standing, as he had fiften krrown them to stand, as a ver-y proper liarrier between absurd eha'ges freipiently made and the innocent person who whs thus saved the igrronriny of standirrg in the dock on a char'ge that no twelve men coirld eutertaiir.' "Mr. Justice (4wynne, in an assize address to a (irand Jury, at King8tfin, spoke of the evils of the system, and after referring to the prelimin- ary examination before magistrates, and the inconverrierrce of re(juiring another en([uir'y before a (ir-aml Jury, the lear-ned jndge continued: " ' .Such, however, is our law, that at the busiest por-tions of the year ymi are called fr-om your avocatiorrs anur time with the substance of one, but it is from the pen of a num of great ability — the ablest and best informed public writer on the continent, in my judgment. I will read from the /fys/^/Hi/c?-, an admirable publication, which was given up a few years ago, to the great regret of its many readers ; " 'The (irand 'lury ([uestion continues to be the theme of observation from the Bench. Kverybody knows that the history both of the (irand and Petit Jury is, in its details, a chapter of accidents. Hut in its main character neither of these institutions is accidental ; nor is the origin of either of them so local or personal as some recent antiiiuaries iieein to imagine, the jury being found in Scandinavia as well as ni England. The (J rand .Jury was, perhaps, in its origin merely an instrument for bringing offenders to justice, very necessary at a time when there was no regular police, as well as for presenting local matters reijuiring reform. This function is now almost oltsolete ; but the same cannot l)e said as to the cognate function of determining what cases ought to be sent for trial. Some sort of prelimiiuiry consideration of the evidence there must be ; it will never do to put a man in the dock on mere suspicion ; all the authorities say in effect that, if the Grand Jury la abolished, a public prosecutor nuist l)e instituted in its place. Certainly the ({rand Jury, in its present form, seems a waste of time and money. Nor, sitting in secrecy as it does, and rt'itl-.out the giuirantee afforded by clear personal responsibility, is it perfectly tit on all occasions to be entrusted with the key of justice. Into its conclave j)olitical and social considerations nuiy find their way. This liability was brought home to the minds of nuist people in I'ngland by the case of (jovernor Kyre, which the (irand .lury refused to send to trial. But political feeling had been excited, and the (irand Jurj' closed the gate. A public pi'osecutor would be guarded by his professional instincts against irrevalent considerations, and though he woidd, in the first instance, owe his appointment to the government, it is diltieult to imagine any circumstances in which his care for his own reputation and Lis interest in liis office would be likely to give way to his desire to oblige a minister. To the institution of a public prosecutor in time we shall i)robably come. "B}' the abolition of the (irand Jury some better materials migiit be set free for the composition of the petit juries. Assuredly it can only have been accident that assignec engaged in investigating this pi'oblem upon first principles, as if it had never been attempted before, when, if they look north of the Tweed they will find it practically solved to the satisfaction of the community.' " Some tliirty years ago a j'oung Scotsman settled in Ontario, full of life and energy. He was soon pushed to the front in matters of public concern, where methodical and business habits were reijuired. Of course, he became a grand jurynum, and naturally his fellows selected him as foreman. He industriously .ipplied himself to gain a knowledge of the duties of the new position. Having done so he arrived at the conclusion the (irand .lury was a useless, if not a mischievous institution, and \u'. contrasted it with the excellent system in the land he had left. With the courage of conviction he at once acte t, told his fellow-jurors, ' I can see no nuinnei' of use in what you are doing ; we are a bill of expense to the country, and we are losing our own time. Let us reconunend that the thing be abolished.' And accoi-dingly a presentment was jjrepared to that effe(;t. That Scotsman is no longer young ; his energy, ability and self-denial secured for him deserved success ; he is now one of the merchant princes of Canada, and 1 rejoice to see him at this moment occupying a seat on the floor of this chaml)er. I will not venture to name him, but it is gratifying to know he is in .sym|)atliy with my move. Yes, he is one of the men from north of the Tweed to w hoin the Lonl Advocate referied a,s knowing, and therefore valuing, the admirable system of public prosecutors in tnat country. " In Ontario the ground is well prepared for a change in that direction, and modern legislation has led up to it. Let me take a brief review. " The conduct of crinunal prosecutions in the Province of Upper Camida was in a very unsatisfactory condition for many yeais jjrevious to 18.j7. h\ the early settlement of the Province oil'ences of a serious character were rare, the counties few in number and the law officers of the thown- the Attorney and Solicitor-tieneral, were able to give personal attention to the conduct of cases at the assizes, usually two in the yeai, the sittings of these courts being regulated by the judges, and following each otiier at such intervals as enal)le(l this to be done. Mut it was iiot so in courts of general sessions of the peace ; these courts were held four tinu;s in the year, nt periods appointed by statute. The gieat bulk of the criminal prosecutions in the Province was in tiiese courts, and these ])rosecutions were left to take care of tliemsehes, or, what was still mo!e objectional»le, left to the conduct and control of private individual prosecutors, who engaged counsel to conduct them. In j)rocess of time, owing to a rapidly increasing po|Julation and other cinumstance not neceasai-y to advert to, the volume of criminal cases largely increased, and the law oHicers of the Crown, members of the (!overnn)ent, necessarily 24 engaged in many otlicr duties, could rarely attend the courts of assize ; the number of counties also increased, and with this came added courts, so that it was quite impossil)le for the Attorney and Solicitor-(ieneral to give personal attendance except at courts at tlie seat of government, or, in exceptional cases, at the courts of assize in other parts of the i)rovince, and the practice arose for the Attorney-Oeneral to commit the Crown business to mendjers of the bar selected by them, who acted for them at tiie courts of assize —or, more recently, to leave the business to the local crown attorney, though that, I believe, has been rarely done. A constant change in (Jrown officers was inevitable, and could scarcely conduce to etliciency or gender a full sense of the responsibilities of the position- -the appointments being only ail hoc. "The court of (juarter sessions, with a greatly increased business in number and importance of cases, remained as before — prosecutions controlled by individuals or left entirely to the courts. Tiiis condition, in a matter so important as the administration of the criminal law, was calculated to cast discredit on the law and its administration, and there were, in fac(, many instances of gros-j failures of justice from the imperfect presentation of cases, or partial or personal feeling or prejudice entering into a prosecution. Complaints became numerous and serious of the evils generated under such system. " In 18;")5 I remember a series of articles appeared in the only law periodical then pulilished in the country ; and, indicating public opinion, were supposed to some extent to have stimulate!' the legislative action which shortly after took place — the pi'ssing of the law which has (survived in all its integrity the love of change, not an incons{)icuous feature in modern legishition. I refer to the County Crown Attorney's Act, the work of the right honorable gentleman now the First Minister of the Crown in Canada. That Act was passed in the year IH.IT, and is one of the best and most valuable of the many statutes effecting reform in law procedure which 8ir John Macdonald has j)laced on the statute book. In one of the articles I refeiTcd to, setting out witii the pn)i)osition that counsel acting for and connnissioned by the Crown was essential to the due administration of justice in all the crimiuiil courts, and called for with a view to the more efficient restraint and punishment of crime, and moreover that aided by public prosecutors the l)Hsiuess of the courts of assize would be on a better, safer and nmre economical footing, it was urged : " ' If it be necessary that a Crown counsel should conduct the criminal business of the court of assize (and that it is necessary no one denies), is it not ecjually necessary that there should be such an officer for a like purpose at the (|uarter s^essions ? lioth are courts having criminal jurisdiction, with similar powers for the punishment of offenders ; if the coui'ts of assize can sentence to hard 1 tbor in the common jail, or to long im[)risonment in the penitentiary, so can the courts of (juarter sessions. A judgment of the coui't of assize affects liberty and character (comprehending the interests of many — wife, children, relatives, etc.) in no greater degree than would a judgment of the (jnarter sessions. Ai-e the cases at the sessions few and insigniticant ? No; these courts sit four times in the year (the courts of assize sit only twice^ and dispose of more cases than tlie superior courts ; and, if we leave out capital felonies and some few offences excepted from the jurisdiction of the (]uarter sessions, the desciiption of cases in both courts is the same. Do tiie judges of assize need the assistance of counsel more than the judges of the courts of quarter sessions? Certainly not. What then — does a crime when presented for trial at the (juarter sessions lose the distinctive character it has at the assizes ? Is an offence against the peace or dignity of the (^rown — the Queen, the plaintiff' — at the sessions to be regarded wholly as an offence of private niiture, affecting only the individual injured (who is allowed to manage and conduct it as he sees tit)— that the party injured is, in fact, the plaintiff? Certainly not, or the law would or. confer upon him tic rights of a plaintiff. A crime, then, is to l)e regarded in all respects as losing nothing of its nature or charactei whatever tribunal it is brought before for investigation. IJut in ])ractice the Queen is represented in the courts of assize, and ))y her representative 'learned in tiie law' brings her cases before the court and jury, presenting them in tliat clear and intelligent way which so greatly aids theadministrationof justice; while in her courts of quarter sessions her cases are left to take care of themselves.' " In respect to t! e value of a public prosecutor at the assizes it goes on to say : " ' On the assize day the Crown officer appears, commoidy at the opening of the court. He knows little or nothing of the business he has to conduct; even of the cases remaining from the last assizes his predecessors inaj' not have left any notes for his guidance ; of the new bu.siness he must look to the depositions and other papers for his inform ition. The Crown officer's first care, then, is to hunt up the depositions and papers in each case, and to exaniino them, that he nuiy be able to judge from the facts and circumstances alleged what offence should be charged and how it should be set forth ; and herein are important considerations, for the same facts may support charges of a very different character, and a misdemeanor or a more serious charge — felony — or several charges of a like hue, may i-est on the facts. Again, the charge may rcijuire to be varied in several counts of an indictment as they can be sustained m evidence. The examinations, etc., taken by magistrates, are not to l)e relied on as designating the offence with legal accuracy — what it may be is to be collected from the statements therein — and it is often necessary to examine the prosecutor and his witnesses vnut vori' to understand the matter set out in the depositions, or to obtain duld from facts and circum- stances necessary to be alleged and jjroved, but yet not state< way — all these technical absurdities, he bore down and toppled over without the slightest hesitation. He was most energetic in the way of reform — in fact he was almost like a 31 hipj)opotaimi8 niHhing througli a cane brake in his ilesire tn make direct and plain tlic path of ready jnstii.'c. W'iien I hoc ins views aiin to the discussion should be within reach of every man, layman as well as lawyer, judges and attorneys-general —'hat it should l)e in the hands of all, to enable everyone who takes an interest in the subject to form an intelligent opinion, and to enai)le me who have taken some pains on the subject, to get the views of those who differ from me." In compliance with the request made in the foi'cgoing address by the honorable senator the government caused a Idue book to l)e prepai'cd and issued, containing the replies of the judges, ninety-seven in number, as well as of the attorney -general of the respective Provinces of Ontario, \ov.\ Scotia, British Cobunbia and Manitoba. Lengthy extracts fnmi this blue book will l)e found in my review, and, no doubt, copies of it may be obtained fr( m the proper (piarter by those who may desire to see the opinions of the Judges in fXtfllKO. OPINIONS OF SIR JOHN ABBOTT, SIR JOHN THOMPSON AND OTHERS. In the iiiontli of Mareli, 1889, in rejj'y to the upeeuh of tlie Honorable Senator (Jowan, already referred to, the Honorahle Senator (now Sir .lohn) Abbott said, as reported in Hansard: "1 am sure the iioune lias listened witli gri*at interest, and is under deep obligation:^, to my iionorable fi'ieiid for the study and researoli which he has devoted to this (piestion of tiie value of the (trand Jury in the administration of justice. It is |)roba)>le that this venerable system is periiaps getting too venerable for tlie j)resent age. Tlieie is no doubt that it is cumbrous, and in numy otlusr respects unsatisfactory. The progress of oiu' free constitutioiuil system, under which offences are tried by independent jul)ott's remarks, says as follows : " It is our o|)inion that in tin; I'rovinc^e of Nova Se<)tia tiio people! are already ])repared for the complete aliolition of the lirand thiry system without further delay. It may he as Senatoi' AMxitt suggests, that in other portions of the Dominion public opinion is not thus far advanced ; but whenever the g.)vernment may ilecide to deal with the matter we do not doubt but the reform proposed will meet with hearly popular approval." Sir John Thompson, in moving the second reading of his bill respecting the crinunal law in A|)ril last, is reported in llaiinard to hwv. referrecl to this subject as follows : " The attention of the public has been directed very consideiably to one change which was mooted in connection with the re organ- ization of the law relating to criminal nritter.s and criminal procedure, and that is the proposed aljolitiou f)f the system of indictment by (Jrand Jury. Tlie attention of parlia'uent and the pui)lic has l)ei!n directed to that (juestion very f()rcil)ly, indeed, by a member of the otlier brancii of Parliament, a member to wiiom, I am suro, b )th f[ousus owe a great deal of gratitude for the pains and the c.ire and the attention he has devoted to legislation durini^ the many years of a useful and honorable life. 1 refer to Senator (Jowan. He moved in the matter a year f)r two ago, and it wa.s thought best that the attention of the public should be drawn even more strongly to the ((uestion than it was by the remarks he matle on the subject in the Senate. The result was, as the House may remember, that a cii-cular was sent to all the judges in the country who have jjcrmanent criminal jurisdiction, and indeed all the officers charged with criminal prosecutions, calling their attention to the change which that learned gentleman thought desii'able, and asking their opinions as to its proj)riety and ex])ediency. It was felt that the opinions of those who are connected with the ailministration of criminal justice and have its cnre from time to time woidd be of groat assistance tf) Parliament in franung any change that might be thought desirable ; and we have had in response to that a great number of replies, most o^ which have been published, and some of which have come to hand since the publication of the returns by order of Parliament. The opinions uj)on that subject, by those who were thus addressed, were very divided indeed. Most of the .Judges who are accustomed to administer justice without juries in ordinary proceed- ings were in favor of the change. The others were divided upon the subject ; and it is impossible to deny, in view of so strong a division of opinion on the subject, that it seems unwise, in connection with this measure, to foi-ce that provision on the attention of I'arlianient at present. I must say that I concur personally in the opinion expressed in another place by the learned gentlenum to whom I have made ;efeieuce, and 1 think that in many ros})ects the administration of justice would be improved if we dispensed with the inter- vention of Granil Juries." .Sir John then refers to the disputed (juestion of jurisdiction, to which I hereafterrefer,andtothe>f tliu two, le>s dangerous is th' offence To tire our rtiience, than mislead our Ktn»e. — PoPK. A few of the judgoH in coiiBidcriiig tliu <|UeHtion of the ubolilion of the (Ji'iind .lury simply Hiiy they aix- opposed to doing so, l>iit giverty and pojjular rights are happily estal)lished in this country tm a sure basis, and are understood and valued, and he utterly denied that firand Juries are m any sense the palladi\im of cither. It has been sam that two of the main reasons for the existence of the (Jrand Jury in early times, were : Ist, The protection of the citizen ^rom vindictive prosecution by the crown or by some powerful oppressor ; and, '2n(l, the great inHucnce it possessed and exerted in preventing the escape of criminals who could invoke the aid of powerful friends. Under our constitutional and democratic systein of government danger from these ijuarters need never again be apprehended. That the (Jrand Jury in its inception and for long years theieafter .served a useful purpose, is cheerfully admitted, but those were time^ when the crown exercised most aibitrary powers, when judges were its creatures, and when justices oppressively sent persons to prison who were accused of trivial or political offences, l)ut at the ])resent day in the few cases wiiich come before it, the utility of the (irand Jury de])ends very nnich on the .iharacter of the justices, and whenever stipendiary magistrates connnit for trial, its interposi- tion is entirely superfluous and unnecessary, and even if the connnitting magistrate siiould chance to be an unlearned man, the prudence of subjecting his open, iionest and above-board (though possibly rougli and ready) decision to tlie .supervision and scrutiny of sucii an irrespo- sible, unskilled and secret tribunal as the (jlrand Jury is extremely doubtful. Great stress is laid by several f)f the judges on what they call the education il advantage" afforded by the congregating together of the (irand Jury. Now, let these so-called advantages l)e examined into. Tiie Giand 37 Jury appear at the opening of the court, they hear from the presiding judge a few remarks addressed to them in necessarily technical and j)rofessional language, the meaning of which many of them do not understand. From the time they enter upon the performance of their duties until they make their final presentment they arc in secret sessiim. They are rarely in court, except when they return their bills, and even then, only half a dozen or so appear. They do not remain in the foart-room enjoying the :*dvantages possessed by a petit jury who are engaged day after day in hearing evidence, weighing facts under the careful supervision and direction of the court, listening to able speeches and arguments of counsel, gaining a useful knowledge of law and business and performing their duties under the censorship of the press and the public. To e Jiat two or three days' attendance as a Grand Juror at court, once perhaps '.t y: " Last of .tH, may rs ant! magistrates, never lie rude I'o juries ! They're people who iiwn't be pooh-pooh V. I Kspecially Saiiilwich ones — no one can say But liiriisclf may come umier their chitches one day ; They then may pay otV. In kind any scofl. And, turiiiuK tlii:ir late verdict quite ' wisey wersey ' 'Acquit you ' and not recommend you to mercy."* It is therefore high time that the standard of this i)ody shotdd be elevated and improved. Ke{)lacing the least well-informed of them with men who woidd be lilterated from service on the (irand ilury would have the desired eti'ecl, and the result could not fail to be other than eminently satisfac- tory, not only to the general ])ublic, interested in seeing the criminal law ])roperly administered ami respected, liut to that large class of civil suitors who, when they p ly for it, should certainly have the right to expect that their cases would bo tried by a body possessing at least ordinary intelligence. Now and then a judge gets the better of one of those juries " who know all about it.'" I remember a case of this character which came before the Honorable Chief .Justice Gait some yeai-s ago. On the occasion referred to a young n an was ari'aigned on a charge of having stolen a box of cigars. The evidence had, in their opiiuon, been strong enough to warrant the jiu'y, notwithstanding the judge's .strong charge in the prisoner's favor, in finding a verdict of guilty. His Lordship, one of the most tenf non-criminal poor, improvements in cf)urt houses, jails, etc., and to receive from them many suggestions indicating the trend of outside thought and o])inion ; their attendance is of great puhlic advantage, they hecome acquainted with the working of our system of juiisprudence, familiarized with many of the pi'inciples of law and are prepared to suggest stejis to he taken in tlie aiviend- nient of law or of hringing in new statutes, which to tiie lay mind seem necessary : from them come our justices of the jicacc, legislators and many officials. Another learned judge says that as an educator f)f tlie people it has great merit, as an insjiirer of love of law and order and resjiect foi- constituted authority, its influence is heyond (juestion. It hrings the hest men of the county together. It gives the people a inobt invaluahle insight into the manner in which justice is administered and is a factor in elevating the tone of society, and we have the coinhination of general conimon kno\\ledge on the part of a jury with the experience a: d legal tiainiiig of a judge. A learned county coui't judge says that thi-ough the judge's iiddress to iiiem, the various changes in the law ar-e made known to them and through them to the people. Their attendance faniiliaiizes them with the modes of the adminis- tration of justice and tiie jiroceduie of the courts and has a tendency to keej) people out of petty and fr-ivolous disputes causing neeilless and exjiensive litigation. Selected as its memhei's are fr-oni all jiai'ts of the county, and representing all shades of [nihlic opiiiioii, they discuss the sevei'al topics laid hefor-e them Ity the juilges and on tiieii- I'eturii lo their homes tiiey take with them the ideas they have acciuired, and thus puhlic ojiinion is moulded, the reeves of the municipalities are instructed, and the hands of the county council sti-engthened, when the time comes to make any necessary apnropriation. The changes are r'ung at great length upon these advantages, with sliglit f 'uinge of phraseology, hut, in the main, agreeing with what I have written. It would he imjiossihie to give all the o[)inions on these points at length, nor would it answer any useful jiur-jrose to do so. In reply to these ai'gunicnts I can only repeat wliat I have alieaily pointed orrt in another jilace, viz., that in consecjuerice of the ver-y hr'ief period in which the (irand .Jury remain in the court room, their opjior trinities for acquiring the knowledge wliiciii is considereil so valuahle, are limited to hear - inga short ciiai'ge fi-om a pr'esiding judge, wiiich sur-ely must lie consider'ed a vei-y homeopathic^ dose of politieo-legal-irrunicipal econonry to lie disseminated 40 " when they I'eturn to their homes" among tlie large contingent of the l)0(ly- politic whicli they are supposed to represent. With the abolition of the present system, and with a competent substitute in its place, none of these advantages, if they are such, would be lost, but, on the contrary, much more extensive opportunities would l)e afforded to xn improved petit jury for learning these and many other things, so that the continuance of tlie system as at present is, at this moment, actually operating disadvantageously to the country, as it prevents the diffusion of much more valuable legal and general knowledge. Again, it is argued that when an accused person is discharged by the " no bill " of a (irand Jury, he occupies a better position in the eyes of the public thin if lie had been placed in the dock, and acquitted after a trial in court. Now, what is the fact, tlie Grand Jury is a tribunal which sits in secret, none of its proceedings in the investigation of a case are known to the public. Kor augiit the latter know, tlie accused may have escaped by reason of some flaw in the indictment, or through want of thorougli entjuiry, or by a misconcep- tion of tiie law or in consequence of the favorable leaning of a friend or two, and the tender-heai'tedness of others on the jury — in fact through any of a variety of lucky contingencies. However honorable some people might think an accused person's accjuittal in this "no bill" way to be, there are always a great many more who regard the secret and luiexplained proceedings of a Grand Jury as anything but a clearing of his character, whereas, if he had stootl his trial in open court and been lionorably acquitted, no malicious busy- body could go al)out insinuating that he had got off by what is populai'ly termed a "nuke." On this point tlie Honorable Attorney-General Longley, of Nova Scotii, says : "In most eases when a party is charged witl\ crime it is his interest to court a public trial. Even when innocent his innocence can be best vindicated after a public investigation. It very often happens that with a cloud of suspicious circumstances surrounding the case the public will not accept the l)ald statement of ' no bill' from a (irand Jury as a vindica- tion." He refers to the fact that on several occasions since he has held his ortice he has lieen asked to tile a nolle proncqui, but that in the interest of the accused he has declined to do so, as he has felt such a course would fail to satisfy the public and leave the enemies of the accused in a position to say that if tliere had not bean a special interposition a conviction would have been obtained. In every case the wisdom of his course hid been justified by the complete vindication of the accused persons. He further says : "I have known instances of parties consenting to the trial under the Speedy Trials Act who were, so far as could be judged, innocent of the charge, but who sought the earliest opportunity of ca public vindication. This leads me to conclude that individuals in this country do not place a priceless value upon that institution which is supposed to guard them from the horrors of a public investigation. Whencnce a charge of crime is preferred against a man supported by evidence, either of a direct or circum- stantial character, the finger of suspicion is at once pointed toward him, and this can be best removed by an investigation of the most public character." His Honor Judge Deacon says on this point : "A really innocent person will generally desire a public and open vindication, and will not be content with a ' no bill ' or other suppression of the ciiarge." Judge Hain says : " ."Should an innocent man be committed, his character will be more fully and satisfactorily vindicated by the trial and acquittal by a common jury, than by a secret investigation before a Gian''. Jury." Some years ago the late Chief Justice Cameron addressed a Grand Jury on tills question, among other things, referring to the disgrace felt by an innocent person when put on trial. His Loidship appeared to overlook that a man may he put in jail by order of a magistrate after a preliminary trial and kept tlure. \i there is any disgrace, the being sent to jail is surely 41 greater than being placed in the dock. The truth is, there may be no disgrace either in the doclc or in tiie jail, nor is there if a man l)e subsecjuently ac(|nitte(l. But tlie innocent nia-i would naturally prefer to have his innocence established upon a pul)lic, open enquiry, instead of being simply allowed to go on the " no bill " of a secret tribunal. Some of the judges dwell upon the dangers which occasionally arise from the conunittals made l)y an inexperienced and initrained magistracy, who, not having acijuired a legal education, are not conversant with the rules of evidence, and it is asserted tiuit tlie Grand Jury act as a wholesome corrective of this, which would be lost were tiie system abolisiied. There would be considerable foice in this argument if the Orand Jury was swept away entirely, and no adequate and proper substitute provided to replace it. As, however, the lietter opinion appears to be, as already stated, that it would not l)e advisable to abrogate the functions of tlie (Jrand Jury unless such sul)stitute was j)rovided, all tiie arguments liased on the ground of danger arising from this source must necessarily fall to the ground. Very few wlio favor the abolition of tiie (Jrand Jury desire that tiie magistracy of tiie country sliall take its place. Tiiere are sucli serious and obvious oljjections to tliis course tliat 1 do not consider it wortii wliile ^ further to discuss tlie point, as there slioiild, manifestly be, as most people admit, some triliunal interpf)sed lietween the committing magistrate and the prisoner's dock. For, wliile occasionally a capable magistrate may be found fully competent to dispose intelligently of tiie more serious cases whicli might come before liim, tlie average justice of tlie peace is not fit eitiier by e(]ucation or training to do so, and, indeed, would not care to undertake tlie additional responsil)ility. A few of those who consider that it would be better "to leave well enougli alone," appear to think that tlie question of expense is a mere b igatelle, and should not for a moment, be allowed to weigli against the otlier excellencies wliicli tiiey discover in the system. Tlie general public, viewing tlie matter from tlie standpoint of tlie long-suffering and already too much governed tax-payer, may very justly say, that, before agreeing to this judicial argument, they would like it to be confronted with some reliable figures, in order that they miglit judge for themselves whether they are not paying too mucli for tliis mere matter of sentiment. From a comparative return for the five years ending in 1880, compiled by the county treasurer of Nortliumberland and Durham, in the Province ef Ontario, and set out in the return to the Minister of Justi:;e already referred to, I have ascertained that tiie average yearly cost of the (irand Jury in those united counties, for attendance and sheriffs fees alone, was $1,020.70. To tliese sliould be added the feca of the clerk of the peace, the selectors, the justices, additional fees to tlie sheriff, the expenses of ballotting, crier's and constable's fees, and the additional per diem allowance \vliich the jurors receive since the passing of the recent Ontario statute. These additional sums would not be less than §180, and thus tlie total would be .ii!l,'200 per annum. In the large County of Bruce the average is very much higher— the per diem allowance and services by the slieriff amounting alone to $2,*2r),3. In Middlesex tlie per diem allowance alone, paid in I88ij to tlie (irand Jury, was $1,1(55.40 before the increase. In Hastings, Judge PValick makes the average paid to Oraiid Jurors alone for tiie five years ending with 18!K), and before the increase, $788.74 In Leeds and (Jrenville, according to Judge Macdonald, the total before the increase wfis about $H'u. In Elgin, which is a small county, the average amount per annum all told for the last five years would not fall far sliort of $1,000. The estimates for Hastings and Leeds and Grenville are, I tliink, too low, and I imagine that a fair average of all the expenses causetl by the 42 system in Ontario would be about |!1,4()() for each county, tbus making the aggregate for tiie thirty-seven judicial districts $;")!, S(M). I find that the Lmi^ Journal and some other papers a few years ago fixed the gross sum at $r)0,00() before the increase in the per diem allowance. As suggested in another place, if the (irand Jury should be abrogated and a public j)ro8ecutor be appointed for a gioup of, say, three counties, tliere would be a fund of $1,400 for each county, making I5!4,'200 for Die whole grou[). Surely a thoroughly competent person could be foun.l to accej)t the position for each group, for one-lialf the last named sum, and tiius a saving be effected for each county of $700, and with an improved system to take the place f)f the old one. The figures I have used are from an (Ontario standpoint ; if in otiier provinces the amounts are smaller, as woidd appear to be tiie case, at least in Nova Scotia, a<;cording to Mr. Justice Townshener of the county judges wlio have had very wide experience and have given the matter special attention, and it is not saying anything disrespectful to llie superior court hesncli, that the opinion of such men must, from their surroundings, personal ohsei'vatiou ancl<)ngiiig U> ii iniiturt'd ineasiire." 'I'lii! omiiuiiit Hdliolar Mr. (Joldwiii Smith writing on tluH subject, is thus r»!|)()rtc!d : " A piddii; prosouiitor would he guarded liy his professional instincts' against irrelevant considerations, and though he would, in the first instance, owe his appointment to the (iovernment, it is dithcult to imagine any circuni stances in which his care for his own re[)utation and his interest in his olHce would he likely to give way to his dtisire to olilige u niinistei". To tin iiixti/iitioii of' ft piililic pi'owcntor we in time xliall prohiihly come." Coming from a layman, as this does, it is very valuahlo as an initiative to a body that should now have something to say in a matter which so intimately concerns them. In case the (irand .lury siiould lie abolished and the county attorney he consideied an improper sul)stitute for that hody, then one argument employed hy nuiny of the judges will lose its force, as it is very sti'wugly urged by them that this otiicer, if paid by fees to perform the udditional duties, would have a sli'ong |)ersonal inducement to forment and institute ci'iminal prosecutions. The same argument would, of course, apj)ly weie a indilic prosecutor, paid in the same manner, app;)inted. This objection would, however, be overcome if the latter official was i)aid an adecjuatu salary. As it woulil be necessai'y that he shoidd be a barrister of some years standing, and one not practising in criminal courts, and as it woulil, con- se((uently, be too expensive to have one of these f)tHcers for each county, they (iould l)e a[)i)ointed foi' a group of counties ; in this way a salary sufficient, as siiewn elsewhere, to induce talented and high-minded men to accej)t the posi- tion would be available, with the result that the public would have as much confidence in these ofiicials as they now justly have in the judiciary of the laml, a;.'ainst whom no one ever iiears a word of well-grounded complaint, although they have vei\y extensive and sometimes use vei'y ai-bitraiy powers. It would be as unlikely that the ])ulilic would fear an injudicious or inifuoper exercise of the powers vested in and employed by competent public j)rosecutors as it would be for them to object to the manner in which the judges now exercise those with which they are clothed. Again, while it would be possible for the public prosecutor to lean unduly to the side of mercy and ignore a bill, on the other haiul any harshness he might exercise in unwarrantably finding a true bill could be corrected by the I)etit jury acquitting the accused. The attitude of that learned judge who declined to commit himself on the subject of the abolition of the (irand dui'y wlien re([uested to give his opinion l)y the Minister of .Justice reminds one of a certain distinguisheil nobleman in tiie " lngolds))y Legends" who, on being asked by the Jving of .Spain for advice on a certain matter, cautiously replied : " It's the — .IS 1 may say — proudest day iif niy life ! I'ut as to the point — on a subject so nice It's a delicate m.Uter to give one's advice, Kspecially, too, when we don't clearly viea The best mode of proceeding, or know what to do ; My deciiled opuiion, however, is lhi>, And I fearlessly say that you can't do amiss, If with all that tine tact, hoth to think and to act. In which all know your majesty so much excels - You are graciously pleased to- ask sotneljody else !" While the brevity of the renuirks with which some of the other judges dismiss the subject recalls what w s said on the same occasion to the king by another distinguished noblenmn, a companion of the last-named individual, viz. : "Then the Count de Pacheco Whose turn 'twas to speak, () — -Mitting all prelace, e.xclaimed with devotion, 'Sire, I beg leave to second Don Lewis's motion ! " EXTRACTS FROM THE OPINIONS OF THE JUDGES AS TO WHAT SHOULD BE SUBSTITUTED FOR THE GRAND JURY. A great miml)ui' of tlioHo wlio advocate tlie abolition of tiie ( J rami . I my, and many of those vvlio opj)()3e its al)()lition. are of opinion tliat before being ab()li»lie(l, there siiould lie some eonipetent tril)unal Hiii)Htitiited for it. Sir .loiin 'l"homi)son, wiien tiie ipieHtion came i)efore the House of Commons in April, 1H!('2, is reported in I/ansanl to have thus remarked: " Another ronsideration which has had great weight with the judges who desire that tlu; change should not l)e nuide at pi-esent, is the uncertainty as to what procedure would take the place of that before the (Jiand -Jury. I can suggest no other as likely to take its place, except aometiiing like this : It is the reijuirement that every person, before being tried, should be committed for tiial after a preliminar} investigation or an examination bj' soniecom])etent authoi'it)'. 'I'here are many ottences, as most niend)ers are awaie, for which trial can take place now without any connnitment for trial preceding the charge to the (Jiand Jury and the a])plication to the (Jrand .Jury and the inilictment by the (!rand -hiry. It will be absolutely necessary that we shoii'd insist upon a ])rovision, if we should abolish the fmictions of the (irand .lury, that every person tried must first be connnitted for ti'ial, and in tne second place that the complaint, indictment, chai'ge, or whatever it might be, which would take the place. of a (Jrand .Jury's indictments, should be approved by the judge before whom the trial is to come on." Mr. .Justice (Jwynne says : "The justices of the peace can always have the assistance of the county ci'own attorney to advise them in the discharge of theii- duties, any way (»f iiiipi'oveiiieiit on tin* (it'iiiid •liity HyMtoiii Iuih Ik!i-ii HUggeHtoil. Ho Im not favorably iiiipruHHcd with Miu Htij^geHtion of leaving to one pciHon I liu c|iie8tion of whether an accUHeil person is to lie put on hi.s trial. Ml'. .luHtice liurton conHiders tlie ])nlilic HJionhl Iks infornied of the nature of the triliunal intended to take the place of the (Jiand dnry. He does not know iiow tlie appointment of an otlieei' like the procurator tiHcal Iuih been found to work in Scotland. He then proceeds to say : " liut it would, under any circumstances, he impossihle in praclict^ to entrust the snper\ision of all crindnal investigations at present perform<.-d i)y (I rand .luries to one Huch otiiciai, and the persons tilling the otiice iihould lie men of high attain- nier.ts, to whom large salaries should, to secure etiiciency, he paid. There are obvious reasons, which will suggest themselves to every one accu"*' 'ned to the administration of criminal justice why so large a discretion sh> )t be entrusted to the county attorneys. I am of opinion, therefoie, th .o first consideration is : What is priij)osed to be sidistituted for the (Iraini .lury f And then does that tril)unal, or is it likely to, command the conlidencc of the public '! " .ludgc Lazier says that so far at least as the general sessions are concerned the duties now performed by the (irand Jury nnght be left to the police ami other magistrates antl the county attorneys or some other ])ublic prosecutor. .ludge Price thinks that, " if some satisfactory otiiciai board could be nanietl, before whom the com]>laint and e\idence could be laid, ami no indict- ment ])roceede(l upon except such as that board should advise, (Jiand .Juiies nnght be dispensed with and money be saved. If a satisfactory oHicial or board can be appointed the expense would be overcome and cijually satisfactory residts arrived at.'" .ludgc Deacon suggests that : " If the 140th section of Cap. 174 of R. S. ('. (the old Crinuinil Procedure Act) were nuide to cover all cases, and a competent public ])rosecutoi' appointed to take charge of all prosecutions, then there would l)e a tangible responsibility, ami every step tak ' o])enly ami above board, the result being a inoi'e ethcient ai'd less expensi- nn'nis- tration of justice, with every satisfaction to the jiublic, who woul ble to see for themselves every step in the ciiminal i)roce{ the diversity of opinion among the jntlges in regard to the contiimance oi- other- wise of the (Jrand dury system, but, apart from thein, I do not think the public at large are gieatly exercised, one way or the other, about the present sj'stem, and would readily fall in with and approve of the change when its beneticial operation was made to appear." Judge .Jones, in objecting to the abolition f)f the system, also objects to the duties oi the Grand .lury being relegated to the county attorney, an ofticer who is wholly [)aid by fees, an •lutlgo Miu!«l(tiial«l Kiiyn : " I •!«) not belit^vo there would pnietically Ito any iiijuHtico (lone to H imiHoii duirficd witli an nircncc, if In; should at the Hitting of (he court, ho placed upiiii iii.s liial hcforc llic ordinary jury without the intervontioM of a (Irand .lury. In the great nmjority of caMeH — pt'rhaj)M nine out of ten there Iiuh airi^idy i)cen an investigation before a nuigiHtrate, wiiich has enaliled the defemlant to know the charge made agaiuHt him. And in the eawe of tin; aliolition of the (Iiand .luiy I pre«ume in no cane wouhl a man he placed upon trial luifdn; a petit jury v\ithr)ut such previous investigation being had." •ludge Hoys HUggests retaining the name of (irand .Tury, but would reduce their nund)er to three for each county or district to be selected fron\ the best avaiial>le pul)lic olhcials. His Honor then at consiileralile length discusses the powers and duties of this (Jrand Jury, ane at liberty to Hie an information in the supreme court charging any crime he pleases against an individual in the same manner as he would tile a declaration for debt ? If so, the ])rothonotary's otHce will be the receptacle of many false and scandalous charges, which, if ])reviously investigated by a (mand Jury, would never have seen the light. If not, what advantage is to be gained liy substituting a new body to perform the .same duties that were performed by the one abolished? " Mr. Justice Hensley is of f)piiuon it would be hard to find an efficient substitute for the (J rand Jui'y, and thinks it would be dangerous to attempt it. Judge Kelly thinks the functif)ns of the(Jrand Jury might conscientiously be transferred to district and county court justices before whom indictments and presentments could be submitted, and at briefer intervals of tunc than the present procedure permits, and thus when one is falsely accused a speedy removal of the accusation would he accomplislied. MANITOBA. Judge Bain says : "It may happen that justices may make connnitments on evidence that will not warrant them in so doing ; and if (Irand Juries are to l)e done away with it would be necessary that a means should be ])rovided by which persons so cf)mmitted could be discharged without having to wait for and without having to prepare for a trial. Such a discharge should be by a judicial act, and I would not like to see any single official entrusted with tlie power of deciding privately, and on his own responsibility, whether one who had been committed for tiial should l)e tried or not Provision Avould iilso have to be nuide for preparing indictments in proper cases against persons who had not been committed for trial." BRITISH COLUMBIA. Mr. Justice McCreight says : "If there is no (irand Jury the duties which they now discharge will, I suppose, be performed by a provincial officer. I cannot say that the change, although it would probably work well in the great majority of cases, might not on some occasions raise doubts as to its policy. Judge Bole is of opinion that the change i)rop:)sed is open to the grave objection that the powers of (irand Juries would bo transferred to otlicials, and might in some cases lead to serious complications. A PUBLIC PROSECUTOR. to Chief Justice Hagarty, as will i)e noticed, has said that " to dispense with the Grand Jury is quite inipossil)le until some careful substitute is found." Many thoughtful judges and others consider that such substitute could with great ad\'anta;4e be ol)tained by copying from the efKcient system of pul)liu prosecutors in vogue in Scotland. It is not a new system. It has been long tried and thoroughly tested, and if the wisdom of a scheme is to be measured by its successful working, then, as Senator (iowan says, " that of the Scotch public prosecutor or procurator fiscal should certainly commend itself for imitation and adoption." The pulilic prosecutors would perform the functions now performed by the (irand Jury. Tliey would have a ' .M'tain teriure of office and the same independence of local and govermr ,iit influence which the law accords to judges and police magistrates. Being, as they should be, members of the legal piofession, they wouhl be al)le to appreciate the Vidue of evidence, bring out the facts from the witnesses and shoulder a responsibility which it is now impossible to fix upon any one juror. They would be under the direction of the chief law officer of the crown, and tluis without any serious disturbance in the machinery of the courts, criminal prosecutions would be placed on much the same footing as under the Scotch system, for which it is claimed tiiat the investigation of ci'iminal offences luid tlie ])ioceedings preparatoi-y to criminal prosecutions are beyond the control of ixijiular influence in the local sense, while subject to strict official su])eivision, to the control of public opinion in accordance with the constitution and to the criticisms of tiie public press. I think I cannot do better than quote here the opinion of His Honor Judge Hughes, the senior judge of the County of l-'.lgin, who, liaving had thirty-nine years' very active judicial experience, is competent to speak with considerable authority on this point. His Honor says : "A pieliminary investigation into crime within each county might ))e substituted, either before a stipendiary or police magistrate or before a salaried official, some- what after the plan in existence for many years satisfactorily, and the functions given to a public proset^utor, in Scotland, called the procuratoi' fiscal. 1 think that such an ofKcer might not only take the place of the(iran4l Jury, but he the means of a great saving of useless expense, by sending cases to a proper tribunal for trial, and so, in a measure, prevent a greit many trifling cases occupying the valuable time of assize and courts of oyer and terminer or other ci'iminal courts f)f record, which too often delay the trial of important cases, and whicii might more profitably, to tiie public, be employjed in trying important civil suits or crimiiuil cases of greatei' moment. "The county crown attorney is authorized by law to perfect and complete depositions, and to institute proceedings as public prosecutor in cases wherein the public interests recpiire the exercise of his otficc, and, where necessary, to cause charges to be further investigated and additional evidence to be collected, whenever, upon examination, depositions connected with criminal charges do not appear to he sufficient or com])lete, and to have further evidence taken where necessary. Owing to the parsimony of the gove'ument, tltrict for which he is ap])ointed, or of any county adjoining thereto, nor should he be a natii'e of the district. He should, before the sitting of the court of assize oi- other criminal court, take a circuit of his di ict for the ])nrpf)se of e.Kaniining depositions and examination of witnesses t n before a justice of the jjeace, and make necessary enquiries into the crinus alleged to have been oonnnitted within his district. To him sheuUd be submitted all the depositions of witnesses in the hands of or filed with the county crown attorney in every crimin.il case. No such case should be instituted, except by priliminary complaint and examination and investigation had upon oath, either before a police or stipeudiai-y nuigistrate (to be appointed in every county) in lieu of the present absurd and too numerous magistracy, oi' upon the |)resentment of the procurator fiscal. In cases where the.'e is no ])olice or stipen.liiiry magistrate in the county and only upon his accusation or indict- ment, should a ci'iminal case be proceeded with, i. c, after it had Ijeen reduced to form and signed by him, and submitted to the counsel acting for the ))ro3ecuti()n thereof, on behalf of the crown. This j)rovision should not a])|)ly to any case to l)e jjresented by criminal information before the high court of justice, or summarily, or coming within the provisions of the Speedy Trials Act, or the Summary Trials Act, or the Juvenile Offenders Act. " The procurator fiscal should hohl his ofJice by conmiission from the governnient, upon the I'ecoihUieudation of judges of the high court of justice, a!ul be removable l)y tile government oidy. He should hold his office during good b','havior, removal)le only for inability, incapacity or misbehavior established to the satisfaction of the high court or any two of the judges. " In casci any relative or person next of kin or connected by marriage or otherwise with the procurator iiscal should l)e accused of crime in any county within his district, some other a most ciipable and etHcient crown counsel, as from a number of years' active work in his [)resent exalted position. He says, " that the care ami vigilance exercised i)y (irand Juries prevents many accused persons from being [)laced on trial where the conmitting nuigistrate acts upon evidence of circnmslances wiiich should only be regarereau"s Criminal Law, second edition, p. 709) where there has been no preliminary investigation and decree, the direction of the attorney-general or the consent of the court or judge to stand as the finding of a (irand Jury. Give power, where necessary, to summon and hear witnesses in support of the charge, to prove a priwa facie case, also to receive affidavits. This, of course, in private prosecutions also. ",1th. As to binding witnesses, prosecutors, summoning defendants or arresting accused parties, the judge might do all these proceedings upon an applicatitm by the crown prosecutoi', or clerk of the crown, or private prosecutor. In case of bailable offences, he might direct the accused to be i)rought before him, or before a magistrate for the purpose of giving bail. "Gth. There are miineroua matters of detail which would necessarily have to be provided for, Init I conceive no difficulty wliatever to find regulations for the whole of them. It is a matter of study, combined with experience in the practice of tluvt brancii of the law. Assistance would undoulitedly be found in tiic reference to the Scotch and Fiench systems, where there are no (Jrand Juries. I believe that in Italy also tliere is no jure d accusation ; of this, however. I am not (luite sure as the law there now stands. CORONERS, CORONERS' JURIES AND CORONERS' INQUESTS. "Second Clown — Nay, but hear you, good man delver. Kirst Clown— (live me leave. Here lies the water; );ood ; here stands the man ; good : if the man go to this water, and drown hiinselt, it is, will he, ndl he, he goes. Mark you that, hut if the water come to him. and drown him, he drowns not himself ; ar^al, he that is nol guilty of is own death shortens not his own life. Second Clown— I'ut is this law? Virst Clown— Ay, marry is't ; crowner's 'quest law." — SHAKKSI'ICAKK. It is evident from the foregoing and other instances given in the course of his works that in Shakespeare's time coroners' iiKjtiests were not considered to be (juite up to tiie maik, and therefore the immortal ilraniatist tiiought them Ht subjects for his keen satire. Tiiere can be no doubt tiiat since tiiose days the progress of education has vastly improved the intelligence of the material from which these bodit's are generally drawn, but it is a hap-hazard system at best. As to the coroner himself almost anybody in Ontario was, up to a few years ago, eligible to fill that otiice, and these positions were bestowed by the party for the time being in power on political partisans only, the (piestion of capacity or fitness being considered, apparently, of secondary importance. A great im])rovement was made when only medical men receivi;d these appointments, because the usefulness of a cort ner's jury is no doubt nuith enhanced by luiving an intelligent head to preside over and instruct them. If the new C'anadian ('riminal ("ode did not, after .luly next, practically abolish the functions of the coroner in cases of murder and manslaughter a still greater improvement over the a])poiiitmcnt of medical men might have been made if the otHce had lieen filled only by a police or stipendiary magistrate, a lawyer or other competent person of experience accustomed to deal with legal investigations and well accjuainted with the rules of evidence, whose finding or verilict of guilty might with safety be regarded as sutticient to place the implicated party on his trial direct liefore the (irand.Iury or public prosecutor, as the case might be, as in ordinary cases. This would prevent the conflict as to jurisdiction which sometimes occurred between the coroner antl the ordinary magistrate, and the general public wotdd be spared the spectacle of seeing one l)ody acijuitting an accused person or finding him guilty of man- slaughter, while another brought in a verdict of manslaughter in the first case or one of murder in the other. The methods occasionally adopted in some parts of Ontario a few years ago, when rival coroners vied with each other in their unseendy eflbrts to be first in the field to hold intpiests in cases of homicide will not soon, be forgotten. When such disgraceful tactics were possible it was high time for the Ontario Legislature to pass a preventive measure. W hile f)bjections are sometimes heard as to the manner in which the law is adnnnistered under this statute tr) the eifect that undue economy is often practiced, and cases are passed over which the public have consiilered gravely suspicious, it may safely be assumed that a responsible officer like the county attorney will scarcely decline, when called upon, to issue the necessary certificate unless he has good grounds for doing so. At all events, the act requiring this certificate has withstood the objections to it and has never been repealed. In the Canadian Criminal Code introduced this year by Sir John Thompson, and which is to become law on and after the first of Jul}', 1893, ^0 gome cliaiiges have boon iiiudu toucliiiig the proceedings in cases of murder anil niiin.slaugliti'r hcfoie a coroner. Section iKiS of this code, which is called " I lie Criminal Code, 18!)2," enacts as follows : "Every coroner, upon any impdsition taken before him whereby any person is charged witii manslaugliter or mui'der, KJiall {if tlie peison oi' j)er.sons, oi' either of tliem, atl'ected by sucli verdict or tindiiig be not already charged witli the same oHence Ijifore a magisliate or justice) by warrant under his liand, direct that such person be taken into custody and be conveyed, witii all convenient speed, iiefore a magistiate or justice ; or such coroner may direct such pci'son to enter into a recognizance before him witii or without a surety or sureties, to appear bcfoic a magistrate or justice. In either case it shall be the duty of the coronei' to transmit to such magistrate or justice the depositions taken l>efoi-e him in the matter. Upon any sucii person being brought or a])[)earing before any sucii magistr,atc or justice, he siiall {)rocccd in all I'cspccts as though sudi pcr.son had Ijcen brouglit or had appeared before him upon a warrnnt orsununons." Section ()42 enacts that "after the commencement of this act no one shall be tried upon any coroner's incjuisition."' After the 1st of July ]S!)8, therefore, when the new code comes intf) force, the procedure with regard to the in(|uisition taken in cases of homicide by a coi'oner will be changed by the ."((iStii section. Hitherto, the coroner lias acted in his judicial capacity (piitc independently of the magistrate and the magi.strate of the coroner, and a suspected pei'son might be dealt with by either or botli. This section, however, provides that if such peixm has not been already charged with tiie ofl'er.ce before a magistrate or justice, and the verdict of a coroner's incpiest implicates him so that he is charged with manslaughter or mui'der, the coroner is recjuired to issue his warrant dii'ccting that the accused be ari'cstcd and conveyed before some magistrate or justice to be named by him, or direct that he enter into a recognizance before himself to appear before such majiistrate or justice, because section i'A'2 provides that no one shall be trikd (meaning, of courf"^, in cases of this character by a jui-y) upon any coroner's incpiisition. So that, 1st, the coroner, instead of committing to the common gaol a person charged with manslaughter or murder by the incpicst to stand his trial for the ort'cnce charged, as heretofore, issues his warrant directing that the implicated jier.son shall be taken Into cus'.ody and conveyed before some magistrate or justice to be named in the "'urrant ; '2nd, the coroner is deprived of his former judicial authority to commit ; 3rd, the coroner is authorized, in a proper case, to direct such ])erson to enter into a recognizance to a])pear before a magistrate to be named, to be dealt with by him ; 4th, the coroner' is reijuired to transmit the depositions taken at the incpiest to the magistrate, and ."itii, the magistrate proceeds witli tiie case when brought before him without the furtiier intervention of the coroner, in the same way as if the person luid been accused before him in the first instance, and as such a j)erson may now be dealt \\ith, notwithstanding the finding of a coroner's in(iuest. It should not be overlooked, however, thai the coronci''s in(jnest will still be valuable, if not in(lis))ensable, for the purpose of ascertaining iiow a person found dead came to his death, and whether by foul means chargeable to the crime, or default of same otiier person or persons known or unknown. If the verdict of the coroner's jury was one of ac(iuittal, and if the ])lea of fintri'fnk aciiiiit could be pleailed to any indictment afterwards which chaij^ed the prisoner with the t^ame offence, I could see some use in having an accused person brought before a coi'oner, viz., on the chance of such an ac(|uittal, but as an investigation before that officer is merely in the mitiire of a j)ieliminary inipuiy and docs not prevent the matter being brought befoic a magistrate and a (Jiaud .Jury and being tried by a petit jury, I can see no fjltjcct in con- tinuing the funclious of tiic coroner or his jury in casses of homicid*', bccauoe m no iiuittcr what nuiy be tlie isaiiu of an iiiquiiy l)efort> him llic uauu imiHt afterwards coiiio oefore a magistrate or justice an no (h)iil)t the rode eontemphitcs it shoidd. Again, the county attorney will douhtleas soon see the ineonsecjuent nature of the proceedings before coroners and will witiiliold the necessary eerlilicate in cases where it is reijuired, and tiie matter will then come before a magistrate without a certitioate being needed and in the usual way. The duties of the coroner apart from those just detailed, which, as already mentioned will piactically cease after the Hrst of tluly, 1S9.'{, will still consist of those devolving upon iiim nndei' any act of any of the provinces of the Dominion recjuiring him to hold invealigation.s in casus of accident by Hre (in Ontario, R. .S. O , Cap. 217.) Also the services anciently recjuired of him in those very rare civil cases when just exception can be taken to the sheriff for suspicion of partiality (as that lie is inte ested in a suit or of kindred to either plaintiff or defendant) or in proceedings against the sureties of a sheriff (as in Ontario H. S. O., Cap. Ki, .Sec. 24) or under the Anatomy Act, R. S. O. , Cap. 149, Sec. 7, or under the acts of any other provinces of the Dominion wherein any duty is cast upon him. As stated in a former part of this review, there are no coroners in Scotland ; in that country the duties which devolve in Canada upon coroners and coroners' juries are performed by the procurator fiscal. In the event of the fjirand Jury being abolished in Canada the public prosecutor could, with great advantage, perform the functions of the coroner and the magistrate respectively in cases of homicide, as set forth in the new code and as near as possible in accordance with the Scottish practice. Provision could be made for dispensing with the certificate of the county attorney and making the public pi'osecutor competent to incpiire in the first place whether it was proper to hold an incjuest at all, and on considering there was evidence to justify it then to take charge of the subset^uent proceedings. If this were done the duties hitherto performed by the ancient coroner's inquest woulil, incases of homicide, be altogether abolished, the matter to be iiKpiired into would come before the public prosecutor alone, there would be no coroner's jury, no (Irainl 'lury. the case would be the same as any ordinary iiujuii'y into suspected «rong- these cumulative delights in order to make a prisoner supeilatively happy would be to go back to the old law and deprive him of his (il l.uiioHl <.tolLTgy or, liU ii.in.l iMAJng Iktm «ullin,.Mllv tuitii.LMl, .> I'ody to undergo the Iioitoim of Mciilciui; \['\n " The lifted a.\o, lh<: aKoni/iiit; uIklI, l.iikfMroii trowii ;uiiv t'liactnmnl jiiciiiii- inary |ir()('oi'iiin>{s iiiiiHt lie tak(>n, licftiri' a (ii'and •Inry in pcnniltcd tn deal with tlifiii. I>y way of iciiiindtr, I would nit-iition wliat I tind laid ilown in ("liitty'M Criminal Law and otlicr aiithoiilics— tlial paititH «uspeil(.'d of I'liinu may he hrought to juHticu tiillitr hy ii previous finding of u fact hy an in(|U<'Ht of (irand .Jury, or without thi8 proliniinary Hanction. so that it may ho hy imlictment, i)reMcnlimMit hy a (iiand duiy of any oll'cnce from their own knovvh'dge or ohservation without any hill of indict nicnt laid hcfore them, f)r hy coroner's in(|uests in case of homieide ami the verdict of a jury in a civil case. 'I'hen there is the eriminal information Ix'fort; tlu^ high court of justice l>y the attoi'hey-general '■xojfiiio, or hy leave of the court, which can he tiled for misdemeanors only. No man can ))u put on his ti'ial for a capital otleuce or for niis|M'ision of treason without tlu.' accusation against him heing fouml sullicicnt hy twelve of his countrymen hy some of tlu; methods lu'fore enumerated. No such information could he iiled without previous leave of the court in which it is exhihited, heeause instead of ia.'ing presented on the linding of twelve men, it is meiely the allegation of the oliicer. (See Bac Ah, Information A ; and lUirn .1. Information). In suhstitutioii for all this, an oHicer whose special duty it would h(^ and whos(' trained mind and long |)racti(!e would j)ecidiarly lit him for the work, it IS suhmittcd, would he a far prefera))le and in the interests of puhlic justice and of the accused, a safer mode than that of having minds totally iuex|)erienced hrought to hear upon suhjeets heyond the range of the average (Jrand .luror and especially so in view of the serious allegations and damaging suggestions that have heen made quite recently as to the comluct of the (Irand .Jury, who ignored certain hills of indictment on state j)rosccutions in ihc I'roN incc of (^uehec. Candor re(mircs at my hands the picsentment of tlu: condition of things in two States of tl.e American Union. During the couise of my numerous eiKpiiries I have found to exist in that country as there does hert; a divei'sity of opinion, and a lawyei' of eminence thus states the case; ".My natixi; "State, Michigan, has no (iiand •Inry. There! all examinations are jmlilic. " iiefoie a justit'e of tlu; peat^e, who can hind o\er the accused for trial as " at eii'cnit. This coiu'se is often expeditious. Hut crime is n) secret that 1 "am inclined to think it wise that it should also he investigated under the •• secret gaih of the (irand .hiiy. "In New N'ork our (!rand .luriet* fre(|uently make inves'igations into " puhlic scandals that would he quite impossihie in ]iid)lic hefore our polici! ■• justices, who are the creatures of the eoriiipt rings that are themselves "frequently investigated hy the (Irand Jury. Our police justices ar(! " fr(!((uently ignorant, vicious and lazy, and would never ludd for trial a " confederate charged with ])eculation(>f pul)lic funds. The politics o*" New *■ York City is such a perfect machine that any crinnnal th; " votes can go to his district leader, wiio will intercede fr' " police justice, and justice; is the merest mockery "' An'' '■ goes on to descrihe what may strikingly he the i " the Province of (,)uehec and the other Provinces «. " You will please renuMuher, however, in foiniing " conditions in Michigan aie widely dillerent from " and Hrooklyn. Here a majority of the voters do iu)t apt " least, put it in operaiion and to repeal it if it he iillni virion, the power of disallowance l)e not exercised, otherwise that it he disallowed, and that the lieutenant-governor he so informed On the I8th March, 18S(J, the llonorahle I). A. Macdonald, lieutenant- governor of Ontario wrote that " with a view of enahliiig the Dominion government to dispose of the niattcu' without emharrassmeiit, my g(i\erniiieiit will not issue the proclamation which is necessary in order to hriiig the Act into etlect wiihout either the assent of the government of Canada or the decision of the supreme court or the privy council, that the siihject matter of the said Act is within the authority of the legislature of this iirovince." In May, 1880, .Mr. Lidi telegraphed .Mr. .\Iowat to know if Ik! desired to have the case hrought hefore the suprcnie court. In Septeniher, 1880, Mr. Mowat raised the ohjection that as a case for the supreme coirt prevents an appeal he could not consent to the case going to the supreme court. Shortly after this correspondence was coininencod, the Ontario legislature, 1»y 42 Vic, Cap l.*l, Sec. 1 (Ontario), enacted that "the ))recej)ls to the sheriH' for the ii'turn of (iraiid Jurors for the sittings of the courts of Oyer and 'reruiiner and general jail delivery should eommaiid the return of fifteen of such (irand .Jurors and no more." By section .3 it was provided that the Act should not conic in force until a day to be named l>y the lieutenant-governor hy his proclamation. This Act was as.sented to by the lieutenant-governor on the lllli of March. 1879, Imt no proclamation e\-er Is.sihmI declaring it to he hi.w. (14 By .M Vic, Taj). 12, Sol-. 1 (Ontaiiu) llio. liisl,ineiitioiu>y llicAct. and as tiie matter has nevei- heen hefoi'e the supreme court, the cdiist ilutiuMal < I nest ion as to whether or not the suliject is oi' is not iiltrn vins, the jirovincial l(j;islatni'e is still unsettled, although, leading lietween the lines, it woidd appear from tlie fact of the legislature adding the clause that the Acts were not to become law until the issue of a j)roclamation, there were and ai'c doubts as to their constitutionality. 'riie legal journals of ( (ntario, in t'xhaustive ai'ticles, refute the idea of provincial jurisdiction, hohling that all legislation in the matter of criminal jiroceduie lies with the federal ])ailiament. Kven were the provincial right concuri'ent the federal parliament, for the sake of unifoimity of ])roce(liue throughout the Dor.iinion, ought, it is sid)mitted, to be the proper body to legislate on the subject. Sir John 'i'hompson, the able minister of justice, in moving the second reading of his bill respectini' the criminal law in the House of ('onimf)iis on the I'itli of April, KS!I2, is reported in J/niisord to have said: " '1 he ]»ro])ositi(.n has be( n nu i)ted long ago, that this nuitter may be beyond the (diitrol of this ]iai lianient, and may be nioie j)ro])erly exercised by the provincial legislators. When we cfime to di'al jiractically wi'.li tlie matttr, liiat dili'creine .-ecins to n.e to vanish. It is not a t|Uestii n after all of wlu'thir the (iraud .liiry I'oiins a jiart of the organi/atieii of the courts or not, aiitl, therefore, is under pi ovincial control. It is a ([Uestion whether, in criminal procedure, it is desirable to continue the exercise of functions by the (irand •lury. And in adopting an amended criminal j>r()cednre, I take it to be lieyond doubt that the (|Uestion as to wlu^ther we should or not dis])ense with the ser\ ices of the ( Jiaiid .lury, is one which is included in that division of the criminal law. '" Sir Oliver M"».vat, on the other hand, says that "the Ontario government claims that the abolition of (irand Juries is not within the authority of the |)omininn iiarliaiuciit : that the ( irand Jury is a pat t of the constitution of the CI urt, anil is not a matter of mere procedure." He fill (her says : •' If the change jirov ided by the i'lovincial Act should eomniend itself to the minister of justice, he might introduce into his inti iidi d bill, clauses corresponding with -liJN'ic., Cap. l.S (for which miglit now be substituted .").") \'ie., Caj). 1*2, as the former Act iias been now repealed liy the latter) in case he appiT)ves of these. Or if he should ])refer any variation we might luue siimiltaneous legislation, so as to avoid any i|uestii)ii of constitu- tionality. I do not recollect that any objection was made to the eliangc proposei', except as legards the jurisdiction of the legislature to make it."' Some of the judges, whose attention has been drawn to the subject, agree with Sir John 'riiompson, while the late attinney general of l^ritish Columbia agrees with Sir Oliver .Viowat. THE GRADUAL DIMINUTION, BY DIFFERENT STATUTES. OF THE DUTIES OF GRAND JURORS. The duties of tlie Oriuwl .Jury Iwivo lieun very seriously curtailed by modern leyisliitiou It iuis !;.eii considered tliat not nioie tlian one-fotirtli of tile eases, wliieli toi mei'ly eaine l>>'fore tiiem, are now heard l)y tliat l)ody. Tlie Ei)i/i!r'\ in a recent issue, says tiiat " in tlie earlier stages of English and colonial Instory the ( irand •Uiry fnllilled very important functions, such as the institution of proceedings for tlie aholilion of nuisances, the care and safety of jails and ))ul)lic huildiiigs. and the (indiujj; of hills of indictment against jjcrsons accused of crinu.' I>ut in cousecjuence of the estahlishnient of municipal institutions, hoards of health, police mauistrates and other jnilicial oHicei'H sonu!\vhal versey whom accused persons are coninntted for ti'ial, the l)eni'tits which were formerly secured hy the (irand .luiy 'ire attained hy thes(! other means iind ])aiticularly by municipal machinery." His Honor .ludg(! Hughes remarks, imdcr this head, as follows: " By tlie passing of the Speedy Trials Act, in IStiS), the legislature not only, in certain cases, did away willi the (iiaiid hut ahso with tlie Petit .lury. and since then the Attt onfer- ing a like jurisdiction u])ou police and stipendiary magistiates, the Juvenile ()l1'enil(!i's Act and the Summary Trials Act, it has been found that fully one half, if not nioi'e, of the trials foi- crinnnal otl'enccs are, liy consent of tin; persons accused, never biought befoic a jury ; and it is found also that those who are innocent of crime ])refei' not to l)e tried by jury, but ))y the judge ov magistrate alone, and that those who are guilty, demand a trial by jury, in tli(! hope that between the shiftings and shutllings and ])rejudiceH and chances of the jury system, they may escape " scot free," and thereby defeat the ends of justice-, which has been too often done by the jury shielding a crinnnal with whom they have strong political or social sympathies."' CONCERNING THE PRESENTMENTS OF GRAND JURIES. As very forcibly jiut in tin- /.(iir JoiininK of .January, 18!12: "To obtain a pro))er and uidiiased opinion regarding any subject it is sni-ely not necessary or safe to extract information from those whose I'xistence is imperilled by the discussion. We must, therefore, look for our facts and information outside the ( irand .lury room. " • ' In addressing ( Jrand .luries, judges almost invariably point out to tiicm the necessity for the system being continued, the. grand old historic charactei- of their body i.s eidogised to the highest degree, and the jurors iiave it strongly impressed upon their mimls that they stand as a bulwaik against opjiression and tyranny, and constitute the most impoi't ant factor in t he .idniinist ration of the criminal law. After l)eing addrt'ssed in this way for half an hour or more, the good and true yeomen ami s(piires, constitui ing the (iraml lury, are naturally tilled with strong ideas of their own greatness, nnd are convinced, when told of their impoitance by a liigh judicial authority that- the constitution would be imperilhd if the shutters were j)ut iij) ami the dooi's of the (Jrand .Jury room closed. We may also |)oint out that in several instances < ii-and .Juries them- selves have favored a t'hang<' taking, perhaps, in such cases, something of the s|)iiit in whii'h they wci'e addressed iiy a judge cpposed to t heir cont inuance. (In the whole, therefore, we say that the opinions of (irantl .luries aie not entitled to tlie weitdit which sluudd be attached to them in dealing w ith a ((tiestion so personal to themsehes as this undfiubtedly is, ami \\" v<'nture the opinion that iiy taking a ceitain coiuse, one way oi the other, in his charg'-. tlu! judge would (ilitiiiii ii r*^|)1> wliicli would lie Itut tlic i-ellex of Iiisowu \Il!Ws dt'livfied at the opening of the c(»urt.'" Tlie Dundiis 7'riii /tuiiiifr, of the 'ir)lli Fehriuiry, I.S!I"2. tiuus tieiuhaiilly e several topics which from time to time are so lucidly laid before tiicm l>y tiie jud.'c,.! of assizj and sessions, such as the necessity for i)roperly- (i!) treated, well- ventilated and tliorongldy drained jails, court houses and jjuIiKc offices, suitable provision for tlie indigent, idiotic, lunatic and incurable, tlie establislinient and carrying out of needful sanitary regulations, etc., etc., and on tiicir return to tlieir lionics, tiiey take with them the ideas they have ac(]nired, and tiuis jiuhlic (jpinion is nioidded, tiie reeves cf liie several municipalities are instructed, and the hands of the county councils aie aliengtliencd wiien the time conies to make an appropriati< n for any make the eiii[uirics and [iresent tlie result." Mr. Justice Peters, of Prince Edward Islanil, says : " 1 need not remark that the duty of a (irand ilury is not coiitiiied to the investigation of charges for crimes vvliicli m ly br; brought before them at tiie sittings of a court. iTut their duty is also to visit pul)lic institutions such as prisons, lunatic asylums, etc. , to examine into the nrinner in wliich the officers and keepers of said institutions [lorfor.ii tlieir several functions, and to examine tlic sanitary condition of such institutions and present their report thereon to the court. In my long experience as a judge I have nvjt with many cases in wJiicJi the exercise of this visiloiial power of the (Jrand Jury has been the means of exposing great dereliction of jiublic duty." It is not a little singular that only these eight judges should Irive considered the duties of (irand Juries, as to this branch of tlie subject, of sntlicient importance to lie allmlcd to ; three of these being of opinion their services were valueless, one suggesting a substitute, and that therefore only four should say these duties were important. I think Judge McDonald has hit the nail squarely on the head when he says lu! has had cvciy reason to be satisfied with tlie response made by the (lirand -lury to suggestions iiiadt; by him in his charges to them, but that little or no influence appears to have been exercised by them, and that their repre- sentations and recommendations were useless, or comparatively so, in procuring such legislatifin as it was aimed to obtain. As a rule I think it will be found that the preparing of the present- ment is left in the hands of 'he foreman, and that this document sinijily echoes the charge of the presiding judge in a stereotyped and formal fashion, makes certain recommemlations and suggestions, and there the matter ends. As a rule, also, county councils rather resent tiie interference of " the fifth wheel to t'.ie judicial coach." ;is an uiiwarranUiblc nsurpatioa, and will siiiijily not legislate at all if they are asked lo do so by that body. As the country already pays high salaries to jirison inspectors whose duties cover the ground much more satisfactorily, the prison authorities never having notice of the coming of these officials, it may be considered conclusive with reference to this matter that the services of the (trand Jury might easily and profitably be dispensed with. The Toronto Afail ot March Tith, 188!), says : "In that they visit public institutions, such as prisons and asyinms, they do ))erforin some of the old duties. 'I'Jieir work, however, so far as this feature is concerned, is merely a duplication of the labors of the inspectors. It discovers no wrong and produces no results beyond a prefunctory report upon the condition of the institntions examined. "" An editorial in the Toronto Week of November, 18!)0, says : " Among the fnnclious of the (Iranil Jury, Senator Trudcl once jiointed out what 70 seoiiHMl lo liiiii to lie a moul useful out', viz., that it is a kind of coiiiniission of gcMU'ral ou(|uiry into tiic workings of jirisons, asylums, and othor pulilio institutions, in which its usofulnohs is s|)ocially seen. Mut to those wiu) know anytlung of the practical working of the (Jraiwl Juries in such cases, it is known that the institutions which they insjx^ct are always jwi^pared ami clean-swej)t f r the occasion, while the ins|)cctioii consists of a I'un through tlic liuiiding at tlie heels of the waiden or superintendent. Tin! licst proof of the inutility of such visits of inspection is tf) he found in the fact that the go\ern- ni'jiit h is inspectors of iti own. who otHcially inspect, the puhlio institutions, and on their reports, not on the recommendation of (Jrand Juries, improvements are made and changes carried into (;irect."' THE GR^ND JURY A SUPERFLUOUS COURT OF APPEAL. The primary duty of the (irand Jury, now, is to determine whether the magistrate who has cMnmitted a prisoner to jail on a criminal ciiarge (in the very few cases wherein the accused has not elected to be tried at the county jr.dge's criminal court), after healing the evidence against him, had any justification f(ji suhjecting the prisoner to trial, in otiici' woi-ds \vhether the committing magistrates lad or had not )u'rverted his duty and coi mitted him upon a charge even hy y)r////'i yiic/' testimony. Thus a large hody of men is summoned from the various parts of their county to see whetiier the commit- ting magistrate, who is supposed to have heen appointed to his office for his ctticiency and ability, knew his huniness, or performed, or violated his duty. Ml'. Justice (i Wynne, of the supreme court, says on this sidiject : " The provisions of the act formerly known as the Vexatious Indictment Act, now embodied in section 140 of chap. 174 of the Kevised Statutes of Canada, and tho provisions of sections (>i) to 7'^ and 80 to 82 of the same chaj). 174, regulating the proceeilings before justices upon criminal charges, are all fi'auied with the most anxious solicitude to pievent ])ei'sons being put upon trial upon frivolous or unjust accusations. The.se provisions, if tiiey ai'c not alr(!ady, can be made al)Uiidantly suHicient to dispense altogether with the services of (Jrand Juries, whose functions are now reduced to an en(iuiry, more ludicrous than real, whetiier the evidence up:)n whiidi the justic(!s hail, after c-areful investigation into the ehcarges, as provided for in these sections, committed the accused parties to jail to stand thcii' trial, was suliicieut to warrant the jirot'ecdings taken, and to justify ihejiutting the accused i)ersons u])on their trial. To me it has always appcareil marvellous that the ijersons who are called upon to serve as (Irand Jurors in this country havt; eiidnrce cipial to the task of preventing the possibility of »o llagraiit a wrong. Simple justice demands 71 that tluTf ouglit to l)t' Mouic triluiiiiil wliicli could at oiicc, f)Z' witliin a reason- \l)ltj time, iiivi'.stiyatu sudi cases and prevent as lar as |)()SKil)le tlic law's intolcrul>ly a preliminary incjuiiy. The same reason \\hicii now prevents such an in(|Miiy, viz., the great inconvenience of snnmKJiiing a huge liody of husy men from their occupations, except at lonsiderahle intervals of time, would not ohtain under any of the new modes which have lieen suggested. THE ABSENCE OF THE RIGHT OF CHALLENGE. When an accused p rs m iippcai.s liefore a Petit .lury he is entitled to this valualile right of challenge, lie is hi ought face to face with the jurymen who are to lie his judges. He can, according to the nature of the charge, challenge peremptorily a certain Tiumher of jurois, iind also challenge! for cause «'/ llhitiiin aflei' his right to clia icnge pcrcmjitorily has iiecomc exhau.sted. I'.cfore the (Irand .lury, on the other hand, he is not allowed to appear at all, nor has he the right to be represented hy counsel, to guard his interests, to cross-examine witnesses, or challenge, jx.'ssilily for good cause, a single juryman. As an integral ]);ut of the secret tiihunal, whicli is to pass upon his guilt or innocence, there niay he enemies of an iiniocent man, per.sons who hold iind have exjircssed strong o])inions on the cute in hand, men who will do their Lest, under the guise of justice, hut in a covert and unsuspected way, hy the adroit examir.ation of witnesses ind in a secndngly ingenious, hut at tl or he same time, cunning mannei', to cause their fellows to l)ring in a true hfll ; r there may he personal, political oi- religious syuipatliizers of a guilty man ,.pon the jury, even relatives or close connections or persons who have a pecuniary interest in the matter to he dealt with, who will urge every jjossihle pica in a similarly coveit hut ostentatiously open manner to ignoieahill. Such persons, eveiy one will admit, ( iight not to have a place on the (irand .Jury, hut wlio is to say them nay or penetrate their disguise '! ( ertainly not, in the Hi-st-named ease, the absent victim or his friends or counsel. Whether the Orat'd .Jury is to exist henceforth or not this llagrant injustice, born of ancient necessities, should not be tolerated in tiiis free country any longer. THE MODUS OPHRANDI IN THE GRAND JURY ROOM. " While words cf li!arnc(l leiiytli and tliiind'riiig sound Ania/ed the gazing rustics 'ranged around." Tlie Canada Law Journal, of January, 1891, contains a long and al)lo article dealing, among other things, with the procet dings which may naturally lie exj)ei:ted to take j)!acc in the (irand Jury room at an assi/e or sittings of the general sessions of the ])eace. The above branch of the subject is so fiirinbjy, and yet so fairly ]iut, that I copy it entire as a conti ibution to what has already been said in othci' jjaits of this review f)n this point. The Journal says . " What is the practical experience in regard to the system 'i We have no hesitation in alleging that there are very few (irand Jures that will not lind a bill at the instance of the crown prosecutor, and tliere are fewer still who will not ignore a bill on the intimation of the court in charging the (ii'aiid Incpiest. This is natural. 1'he jurors are j)rin(U|)ally farmers, with occasionally one or two business n.en on the j)anel. They imj)licitly allow those skilled in the law to guide them, when they thiuk it })roper to nuikc emiuiries on legal nuitters. They ask (piestions, the answers to which mateiially influence their judgment. Hut they are not bound to seek for any information, and a fiiend of the accused on the panel, with a little shrewd- ness, a little manipulation, niay readily succeed in ha\ing a l)ill thi'own out whicii ougiit to l)e presented. Tiie evidence nuvy be ingeniously extracted one way or tiie other, as the exan)iner is friendly or hostile to the prisoner. There is no limit set upon the mode of conducting a prosecution in the (Jrand Jury room. No evidence is allowed to be disclosed outside its sacred precincts. The mahix opcraiu/i remains as if it were a confessional secret. 'I'lie very oatli taken by tlie jurors protects them, as they are in effect sworn to keej) secret what transpires within their chamber. Only one witness is allowed to be ))rescnt at one time. There is no record made of the evidence given. It is true tluit witnesses are sworn by the forenum ; but if the witness swear to what is untrue, his perjury is practically })rotected and safely guarded by the veneration which the law has for the system wiiicii we are op])osing. It is true that if a man swore to a fact in the (Jrand Jnry room an ( directly opposite in the witness box an hour afterward there is a way of prosecuting him, but it would l)e so beset with legal points and hoary headed oljjections that a conviction would be almost impo.ssible. Hills are presented to the (hand Jury on the last day of their session The jurors are anxious to retui'u to th'Mr lion es. It is ditlicult to kee]) them togetlier when their sitting is prolonged, They are to a gteat extent an independent body. What is tile result"; A hurried examination of a witness or two, not one-fourth of the facts elicited, a suggestion l)y an impatient '" good and true man " that anotlierday will be lost unless the business can be finished at once, a linding of the bill, and some unfortunate individual is subjected to the caprice of " the strong god, circumstance," ])ut upon his trial, mulcted in heavy counsel fees for his defence, and acijuitted very often before the Crown has com])leted its case! Surely these are matters which ought to weigh heavily in considering tlie advisability of retaining this adjunct to our criminal procedure. A grave objection to the system is undoubtedly that the jury is a secret tribunal. The proceedings are, as is well known, not only conducted in private, but the privacy is sanctioned and bound by an oath which each juror takes after the foreman has been sworn. No (piestion can be raised as to the sufKciency of evidence, or whether there is any evidence at all against the accused. All other findings of every court ov functionary can be reversed if there is no evidence to support them. The (irand liupiest alone stands in this respect mm 73 uiii((ue aiidheyoiid tlie reach of tlio law, and ooL-npie.^ t lit' lii^di position of being an.s wcM'ai)lo to no |)o\vcr, no couit, and no parlianu-nt of liio Matt'. Its mistakuH eannot la; luctilicd. 'I'la' atiida\it.s or .statements of (i rand .Inror.s are not, as a I'ulo, allowalilo to correct tiie sinipii'st error or remedy tliu gravest miscarriage of justice, and the court tiuit tries tliu case cannot assist by way of amendment, exce])t in matters of mere form. '1 lie jirhiia /'(tcie evidence of a man's guilt is weighed by laymen in secret conclave, the examinations are conducted HO one knows how, an Hiiy tliiil, fur (ilixiiiiis iciiMiiis, tlit.sc arc imt t.ilcs of llic (iiaiid •Iiiiy ruoin. OocaHiuiially. liowt'S fr, uiii; lieacs soiiielliiri;,' of llu' iirouoeiliiigH in tliiitaocrct ami pi'ofonnil L'lwunlii'.r. Only two of tlioMu can I at tliis nionicnt recall. ( »n one occasion tlio Jnidis NM'ic an nnnsiially nicdiocrc ami dull lot of I lie lionc and sini^w. 'I'licy had clioscn as their foreman a merchant, wh(» was corrsidcr'cd one of the hriuditcst lights. 'I'liis f^eiitleman, in adrnirdstering the oath tud(,' ai'de and Malplaijuet gave to Marlhorough and to Miigland ini|)erislial)le reno.iii, has yet in siieli a lemirkfilile nianner I'esisttid, to tiiis day, the ini|)ro\ing hand of the jurist, the li'gislaloi' and the law-reformer. 1 will not ehai'ge to the (iraiid dni'y, or hold tiiem icsponsihie for the hap|)eniiig of, the following I'ather laughable incident wliicli 1 can personally voiicii for as having occurred in a county town not more than three Iinndrod miles from the city of Toronto some years ago, As, liowexei', it could not hav(! taken jihice hail there been no (Iraml diiry, it may not be (•onsidered unfair' to relate it as it is .somewhat f/'Ti/ c to the subject in hand. On the occasion of the first visit of the late Chief .)usli(!e Harrison to the county town referred to the (irand dury had duly selected theii' foreniaii, and hail also l)een regularly swoi'u. The crier' of the court, clad in his oHicial I'olie of otiice then solcniiily arose, and, in a voice which could be distinctly heard in evci'y par't of the. lar'ge court room, made tiie follinving astounding ])iocIaiiiation : '• () yes I yes 1 I yes I I I All manner of persons are strictly enjoined to preserve silence while his Loi'dsliip the chief justice delivers his charge to tiie Oi'and' .lui'y. On pain of -death I" Had a dynamite bomb suddenly appeared coming through tlii! ceiling it could scarcely have creatc^d greater' surpi'ise for' the moment, l)iit. wlu'ii people could catch theii' l)reath, suipr'ise gave place to laughter', long and lond, which the hiiili bailiirand his constables (not coiuiting the discomlited cr'iei', who was of cour'sc hors-de-conihut,) had considerable dithciilty in (juelling. His Loi'dsliip. when quietness was restoie;!, tuined to the sheritl", who was seated at his siih;, and ipiietly remarked, while amusement twinkled in his merry eyes, " Mr. Sheritl', your penalties ar'e r'atlier severe ; don't yon think so V' to which the slieriir as merrily assented. \Vh(?tlier the befogged crier was f>vercoiiie with the extra imp irtancc; attaching to his position in consei|iience of having a real live chief just ice to pi-eservc orihu' for, or had been reading up some idil book of forms containing proclamat ions, and had got nii.xed, I will not say. THE SECRET AND IRRESPONSIBLE CHARACTER OF THE GRAND JURY. A vofy Hf'i'iniis olijt'ctioii ((I till' syMliMii, ami oiiu of tlic wof.st fi'iiiiirrH alnut il, is its si'rict luid practii'iilly ii rfS|H)iisil>l(! I'lniiiu'ti-i', I'vi'iy iiioinllieity, — tlic very osscncc of ooutiWuncu in jiulii'ial procoudiiiys, tlic greatest security for good condiirt, -is strictly guarded against. A secret trilnmal of this kind, where a majority decides, is practically ir'i'es|)onsil)le, aiid may Ix? made to .serve as a hlock to a |H'opc!r prosecution, a screen for an otl'emliir who has l);;cn sent nii for trial hy a magistrate after a:i o|)un en(|iiiry. Again, tiie crown <'onnsel has access to the (iranhold, and wit liin tlic prccinct.s of the ( i rand Jury room itself, men of |)osition have l)een known to intrude themselves, intercede with and addiess the (Ji'and Jury in order to prevent a presentment of matters which should and would have lieen made subjects of presentment Imt for the l)utlon-iioling and imi)ortunity amounting to nothing short of eml>racciy." In a ease which came iiefore Mi'. .Justice lUirton at Cornwall somi' time ago, he referred to the fact that scarcely any gi'eatcr conttnnpt could be offered to a coui't of justice than tam))ering M'itli a jury. He was thereupon assured by one of the learned counsel l)cfoi'e him, that scarcely anytiiing was moi'e common. In I'ases of this rliaraclei' it is of course \ei'y d tiicult to get at the bottom, as great cart' is taken to cover up anj' tracks The ti-mlency of recent legislation has been to take the tri^l of otl'ences out of the hands of juries and put it in tiie liands of judges, with l)enelicial results. Juilges area great deal more likely to be unsympathetic than jurymen, ami vre eertaiidy less likely tf) be got at. Nobody ever hears of cori'upl practices being made to a judge, at least not in Canada. Ill AS A CONSEQUENCE OF THE ABOLITION OF THE GRAND JURY, THE PETIT JURY WOULD BE IMMENSELY IMPROVED, INTELLECTUALLY. "A gooil, contciilcil, welllircjikfiistfil jiii'viiian is ;i cnpit.-il tiling to gel liolil of. or hungry jiir) men ,-ilways I'liul for (lie plaiiitilT, DiiKi'.NS. I)i>cuiitciitcil •Iiulj^o F. Miller, one of tlio nine jinlgcH of the supreme court of the I'liitcid Statt'H, ill nil iihle ai'ticic wiiicli aiipoaieil in tlie A iiifiinni Lmr /,'iriew for .liinuiiry, ISMS, .says tliat lirfori^ lii.s i'lr\a1i()ii to \\\^^ hciK'ii, tin; iiii|»re.H,sion on lii.s iniiiil wan, lliat in civil .siiit.s petit jiiiicss wci'o of douiitfiil valuo At that time lu; wou'.il iia\t' prcfcrrcil a coiirt I'ompo.Hcd of tluoi- or more jiidgoH (to selected from dill'ereiit parts of tlie circuit as to prevent any jirccoiux'ited action or agreement of interest or o|)inionj to decide all (iiiestions of luw or fact. He now thinks, however, that this preference was largely owing to the popular and frc(|iient election of tiie judges of tiie court in which he was practising and to tlieir insiitrK'ii;nt salaritss. They were neither v«!ry competent as to tiieir learning, nor secure in their |)ositions 'I'licy c'oidd not, tiicrcfore, exerinse that I'ontrol over tlie proceedings, in a jury case, and especially in instructing tlu! jury upon the law applicahle to it, wiiii'ii is essential to a right result in a jury trial. A case left to the unregulated dis- cretion of a jury, without that careful discrimination between matters of fact and matter.s (if law which it is the duty of tiie court tf) lay liefore them, is lit tie more than a |)i>piiliii' trial ht^fore a town meeting. The judge should cleai ly and decisively state tiie law, wliicii is his |)roviiice, mid with e(|ual precision point out to tlie jury the disputed (jiiestions of tact wiiich it is their duty to decide." Tiicse remarks of the leai'iied judgt! are uiidouhtcdly sound. 1 hey c unmend themselves to one's understanding, and as tlu^y are hased on a atite of tilings, the very aiitipotles of tiiose upon wliich Mr. Justice .Stareleigli proceeded in iiis famous charge in the great case of BardcU vs. I'ickwick, 1 am tempted to ((Hole the latter entire in order to contrast the two .systems. Mr. .Iiistice Stareleigli (as most people know, this learned judge was really Mr. .Iiistice (iasidee) " suiiimed uj) in the old estahlisheil and most approved form." He ri'ad as niiuli of his notes to the jury as he could decijiher on so short a notice, and made running comments on the evidence as he went along. If Mrs. Ilardell were I'ight, it was perfectly clear that Mr Pickwick was wrong, and if they thought the evidence of iNlrs Cluppins worthy of credence they would lu'lievt^ it, if they didn't, why, they wouldn't. If they were satisfied that a lueach of |)romis(! of marriage liiid heen committed, they would tiiid for tiic itlaiiititl' w itii siu li damages as tliey thought proper ; and if, on the otiicr hand, it a)»|)earcd to tiiein that no promise of marriage had cvOr been given, they would tiiul for the defcmlint with no damages at all." 'i\) the credit of the bench, be it said, that this style of charge to a jury is now obsolete. Judge Miller, above mentioned, further says that an experience of twenty-five years on the bench had convinced him that when the iiriiiciples already stated by him as above, are faitlifully applied, a jury is in ihc iiia'n as valuable as an e(pial numlier of judges would be, or any less number. His experience in the conferences of iho United vStates sii^ireme court is that the nine judges come to an agreement very readily u|)on (piestions of law, while they often disagree in regard to (piestifins of fact wiiich arc as clear as the law. His ci nclusion is that judges are not pre- // eminently o line I t^f tlie respective jurymen, or Ihe selector.s in the locality for which he speaks must either be very lemiss in their duties or ignorant of matters about which the law reijuires them to have some knowledge. In either case it does not affect the general experience of those observers of the subject in hand. THE GRAND JURY ALMOST SUPERCEDED BY THF. PASSING OF THE PETTY TRESPASS AND SPEEDY TRIALS ACTS, ETC. About sixty years ago tin; proposal to try certain (iffences Ijy tlie iiitioductioii of wliat was called, " The Petty Trespass Act," aroused a very strong and stormy current of remonstrance, as l)eing an invasion of the liberty of the subject, because it sought to deprive men of their constitutional right of trial liy jury, and to confide too much power to the hands of the nuigistracy. 'i'he example was, however, set by the hnperial Parliament, and the wisdom of it was proved by the reailiness of its administration, its economy, and the speedy iiisposal of a class ot cases which had incuml)ered the courts and flooded tiiem with cases of trifling consequence to the delay and prejudice of important matters. After the discussion at the diffeient elections, and pointed allusion to the subject being made in tlie publisiied addresses of j)arliamentary candidates soli(.'iting support botli pro and con, the right of trial by jui'y was, by legis- lative ennctment, seriously curtailed in cases in which complainants might pray the magistrate to proceed summarily, but a defendant had a right ot appeal against an adverse decision, notwitlistanding, under certain conditions. In all these cases whilst the right of trial by a petit jury was preserved the functions of the (^rand .Jury wtivn dispensed with. Wiio can count the nuinljcr of acts of ])arliament which have been since passed from time to time, botii by the imperial and colonial parliaments, in the same line, whereby this " palladium" of tlie libeities of the subject in the matter of tlie intervention of the (Jrand Jury has i)een dispensetl with, and the right of t ial by jury altogether al)rogated. The climax as regards app'.als against the sunnnary jurisdiction ol magistrates has surely l)een reached when the Dominican I'arliament and tlie Local Legislature of (Jntario have passed acts altogether dispensing vvith botli the grand and petit jury. Where is the complaint existing against it V What h is become of the cry, *• It is better to leave well enough alone," which met the propasal of sixty years ago ? The Speedy Tiials Act, alluded to elsewhere, was passed in 1861) on the introduction of the late Honorable Jcbn Sandlield Mactlonald, then allorney- geneial for Ontario, in Lis place in the Dominion parliament . [He evidently did not think the latter was acting ulfra rirt's.] Ami althougli the trial by jury was ])reserved to a j)erson accused of crime which involveil the necessity of an indictment by a (Jrand Jury ami a trial by a petit jury, it is the fact that the vast majority of cases were summarily dealt with by the county juilge. Hy subsequent legislation tijis right was extended, giving a like jurisdiction to police magistrates, siiic^ which last change most of the cases are dis]>osed of at the police court. Where is this complaint of? Has injustice been done ? Have not all reasonable doubts arising on the trials of cases urdei' this nonjury .system been considered and given efl'ect to in favor of the accused by the judge or police magistrate in the same manner and to the sameextent as a jury would or ought in all reason have done? Whilst the system undei- the Specid^y Trials Act was new, it was the hal)it of son)e lawyers in defending prisoners to advise their clients to demand a trial by jury. It was soon fountl, however, that as fair a trial anil as satisfactory results followed an election to be tried without a jur}', as might be expected from the latter, and so the rule now is, for a jierson accused, who has been biought within the provisions of the act, to elect to be tried by the judge, and the exception is for him to demand a trial by jury. m HINDRANCES TO THE EFFECTIVE WORKING OF THE •DECENT ONTARIO ACT REDUCING THE NUMBER OF GRAND JURORS. Besides the practical liiudrances wliich would prevent the enforcing of tlie recent Ontario Act, to say nothing of the constitutional objections alluded to elsewheie, there is the want of provision for contingencies wliicli are not only ])ossil)le, but obvious and pi'obable. It was always an anomaly m the provincial legislation of Ontario that the courts should issue their ])rocepts tor tl)e sunnnoning of twenty. four Grand Jurors, when it was required that the (Jrand Jury must consist of twelve at least, and might contain any greater number, not exceading twenty-three, in order that twelve ndglit form a maj(nity of the jurors. On one occasion one of the chief justices of the Queen's bencli division in Ontario, presiding at the assizes, finding that twenty-four Grand Jurors answered to their names i-ebukcd the sheriff for summoning inore than twenty. three persons, (pioting Chitty's Criminal Law to tlie otticial. Ihe sheiiff meekly appeased the judicial but injudicious and forgetful fault-hnder by siiewing him the precept issued by the judges (signed and sealed by him- •self ) commanding the sheriff (upon certain ])ains and penalties) not to fail ol summoning twenty-four (4 rand Jurors for the occasion. Tlierc must be twelve at least because the concurrence of that number is absolutely necessary in order to put the accused person on his trial, and thee must not" be more than twenty-tliree, because otherwise there might Ik; an e(inal division and thus two full juries, who might differ in opinion, but if the recent act should become law and the (iiand ,hvy system be retained it will be found much more difhcult to find twelve men to agree amongst thirteen than amongst twenty-three, as heretofore. Tiiere must be twelve to hnd a true bill or twelve to ignore a bill, and it is qi ite jjiobable that amongst the kind of men wlio sometimes get pla.ed upon tlie (Jrand Jury it would be found impossible to find twelve out of thirteen to agree to eit'-.er the one or the other, and a "dead lock ^' would be the consequence unless provision was made for' a majority ruling in either event. If that were to be once established then the principle of a man being presented for crime on the oaths of the ancient number '• twelve at least of his peers " would necessarily fall to the ground. THE OBJECTIONS TO THE GRAND JURY SYSTEM. On the occasion of King Iani<;s once making a Royal progress throngh Kngland he »vas met outside the town gates dl a certain borough by the mayor and aldermen. The mayor, on approachn.g the king, hnml ly apologised to His Majesty for r.ct havnig had ihe bells rung as he neared ihe place, sating there were seven leasons for ihe appaienl slight. In the hist place, my liege," lie said, '"we have no bells." Ihe king thereupon was graciously pleased to remark that that rtason was quite sufficient and that he neee subject. Tlie result is given in the following summary : Forty-eiglit in favor of doing away with (Jrand Juries, forty one against, and twelve doubtful. Substantially this is the verdict, althougii tiie classification as regards one or two of tiie opinions given nuiy be considered a little defective. The odicials c()n.«uUcd endtrace neaily all the superior and countj' court judiciary, and it goch without saying that the views and align- ments of these gentlemen are entitled to great weight. Notwithstanding tiiis, it may be considered fairly open to discussion tliat some of them have luid little or no exj)eriencc of ihe working of the system, and that the arguments of several, althougii plausible, do not reach the practical test of every-day contact with (iraiid Juries With due deference to the contention of those in favor of the continuance f)f the present order of things, we propose to brielly analyze the return and eiujuire whether, after all, any sound, piactical reasons have been adxaiiced for tlie retention of the Grand Jury as part of our system of administering criminal justice. " One feature of the eiKjuiry is rather ludicrous. To take the opinion of a body as to the necessity of putting itself out of existence, is very near the line of the iiumorous, and certainly is not the safest method of getting reliable information. We su])p()se if tlie ([uestion were j)Ut to tlie judges coinpo^ing the liigh court of justice for Ontario, 'Are you in favor of being aliolisshed with all the privileges and emoluments of your high office?' we would not re(juire to wait very long for an answer. Ask the members of the Local Legislature or of the Dominion Parliament if they are in favor of doing away with half their number, and the reply would be sharp and short, althougii it may be faiily argued that a deliberative l>i)dy one-half the size nnnuirically, would be cheit|)er, better, and infinitely more expeditious in the despatcJi of business. If we make tender enquiries regarding tiie number of cabinet ministers, either in the provinces or at Ottawa, and, in our solicitutle for their and their country's good, mildly suggest that one-half might be abolished, tlie answer would'be in the shape ot legislation to prevent the spread of dangerous ideas suliversive of good government. We frankly admit that our answer would very largely jiaitakc of the same character as those of the classes to whom we refer for the sake of argument, if we were placec in their position, but it would be the answer and judgment of an interested party, and of ro value whatever in determining tlie point in cpiestion. 'I'o obtain a proper and unbiased ojiinion regarding any sul)ject. it is surely not necessaiy or safe to extract information fi-om those whose existence is imperilled by the discussion. We must therefore look for (uir facts and iiiforniation outside tin; (Jrand •Iiiry room. One thing more in tiiis connection niiglit be profitably adiled to what we have said In addressing (Jrand .luries, judges almost invariably point out to them the necessity for the system being continued, and the grand old historic character of their body is eulogized to the highest degree, and the jui'ors have it strongly impressed upon their minds that they stand as a bul- wark against o])prossi(in and tyranny, and constitute the most important factor in tiie administration of the criminal law. After being aildressed in this way for half an hour or more, the good and true yeomen and sfpiires con- stituting the (Jrand .lury are naturally filled with stiong ideas of their own greatness, and are convinced, when thus told of their imjiortance by a high judicial authority, that the constitution would be imperilled if the shutters were put up and the doors of the (Jrand .Jury room closed. We may also point out that in several instances, (Jrand Juroi's themselves have favored a cii.iiige, taking, perhaps, in such c;:ses, s)in-t!iing of the spirit in wliicli they 85 wore niMri;ss(!(l l)y ;i jiiilgo nppDscil tf) tlu-'ic oontiimiiiiL'e. On tin? wliotn, tlicM'cfoi'e, \v'i3 s;iy tliiit the opinions (»f (! rand Jiii'ie.s iiro not enlitlinl t) tiie weigiit 'ivliicli is iiltaclied to tliein in dealing witli a (piestion so personal lo themselves as this undoiil)tedly is, and we venture the opinion that hy taking a certain ocurso, one way or the other in his cliarii;e, the judge eould ohtaiu a reply vvliich would bs hut the reflex of liis own viewj delivere 1 at the opening of the court. " Dealing now with the return, we point out that the answer of tlie attorney-general of this pr()\incc dfjes not contain any reasons for his views, hut sini]>ly states tiiat he and the nrnjority of his colleagues are of opinion that (irand .Juries should not he aholished. 'i'he opim'on of himself and colleagues is entitled to the gravest consideration, iiut it might lie that his ()l)jections could he fairly met hy hotli argument and facts If we were in possession of the reasons which induced him to come to his conclusion, «e might he in a position to speak more definitely with reference to Lis reply, and modify, if not c()m|)letely answ er, the ohjections to a change of system. " His Lordship Chief Justice Hagarty feels it wouhl not he safe to leave the functions of the (irand Jury to he performed hy an oHicial like the present county attorney owing to pecuniary and professional interest, hut suggests only tiiat until something clearly hetter and more effectual (an he suhstitiited for it, the grand in(|uest ou^dit to he retained. In this we reailily concur, hut he does not say that the duties could not he pei'formed hy some other means. " His Lordship Chief Justice Ai'mour declines tf) discuss the (jucstion, and His Lordship Chief Justice (!alt is strongly of opinio:i that the (irand Jury system should he retained. " His Lordship the Cliancellor takes very strong ground, and whilst it may he m'ged that iiis pi'ofessioiiiil and judicial experience has not extended to criminal mattei's, we think, it will he fairly admitted tliat there are few men more coin})etent to pronounce an opinion upon any siihjeet connected with the administration of justice, civil or criminal. He saj's : ' I have long heen of ojiinion that the time has come tf) ahandon the expensive, anomalous, and circumlocutory process.' " Their Lordships Justices Falcnhridge and McMahon are in favor of the system. Both these judges have had wide exj)erience in matters |)ertaining to this (]uestion. Mr. .Justice McMahon has, perhaps, more than any other judge on the heneh, had that experience whicli is necessary to form a practical judgment relating to this question. " The Honorahle .Justices Ferguson and Street hoth argue in favor of the Orand .Tury, hut at the har they were imt engaged in thit class of work which hrings men into close cfinnection with the administration of criminal justice, whei'e a ])ractical Rnowledge of the working of the (irand .Jury system can only he ohtained. " His Lordship Mr. .Justice Rose reasons uj)on the (piestion at length, and ])Uts the case very strongly. He places the matter largely upon the ground that grand jurors are not suhject to the liias of a crinunal prosecutor, and agrees with Mr. .Justice Falconhridge and several of the other judges that the function of the (irand Jury as an educator is most imjjortant. We are free to admit that his answer contains all the arguments that can reasonably he advanced in favor of his views. They are clearly and forcibly put and deserve special attention. "His Lordship Mr. Jiist.;f;e Robertson, who had, at the bar, a wide experience in crinunal matters, bases his views largely upon the fact that the grand inquest is an educator of the people and inspires confidence in constituted authority. He also puts his case very strongly. Sfi " We liiive lefcned iiioi'c |):irtictiliii-ly to tlie ofiiiiioiis of our .superior court jii(lj,'t!s hociiUHi! t liny (Iciiiiiuil Hiii'ious i.'oiiNi(U^iat inu tioui tlioHc wlio are (liscussing tlu; (|U(JMti()n. 'I'lu' vvnl point, liosvc\(r, wt; ^sullUlil with all • li'fercniM!, hart not liei'ii toUL'liiMl upon, fXcL'])t hy Mr. Jiislicc ito.sr, niiniciy, thill the work could he dom; niore etlicienlly, with greater protection to tlie piihlic and to the indi\'idiuil, and at a much less expense than hy (irand Jules, if i'esponsil)l(! othcers, specially (|ualili(Ml for the position, were ap!>r)inted by the crown. We agree with all tliat haslteiMi saiil with reference to the county attorneys, and without retlecting in any way upon thcsi- gent le- inen \^ e also leadily admit, any reason of the judge holding that no crime appears either by the indictment or by the evidence frr the crown. Every judge, we say, knows this to a greater or less degree according to his experience ; but the judges do not, and, by reason of their ])t)sitioii, cannot po.ssibly know how many guilty men are protected ami relieved from the penalty of their ci-imes by a Urmul Jury trial ! " County judges, by reason of their local knowledge, are specially fitted to speak u|)on this matter, and they are well avvaie of this l)lot on the admin- isti-ation of justii'C, and it is a significant fact, that they stand t\\< iily-iiro to nin<' in favor of abolition, uolw ithstanding the liald way in which I lie (piestion h: 1- :<) was put t> llu'iii. Add 1(1 this miijitiity, .Iud,'^o Wood, wlio favors aliolitioii uh ic'giirdH tliu Hossioiis, and apologotii'iilly pleads foi' a coinproiiiiso, and the niinoiity is a very small ono. 'I'lio point wc make is tiiis : 'I'lic county court judji^t's are tlirown into vory closu contact wilii the workings of all institutions in their districts. 'I'hey nux more fu'(|uently with the ])eople than do the superior court judges, ami in constMpuiice tliey havt- a fuller knowledge of matters like the workings of tiit^tirand Juries, and are more in toueii with the way the orowan, frcun his long judicial experience, and from the s))ecial attention he has given to this matter, is surely entitled to speak with weight, and taking his arguments and views in favor of abolition, one naturallj' asks, 'Are they leasonaljle and right';' It must he admitted they are, and mine than this, they have never bjen successfully controverted. " Assuming his estiuuite fif the cf>st of (Irand .lui'ies to he correct, let us look for a moment at the results which might he ohlained froni a judicious application of tiie fuiul. Five crown oflicers coulil he appointeHs, and tin! fiuill.s complaint!!] of aris more apparent tlit; more incxpcri»Mi(rcil tiic crown counsel if. 'I'iiiM is surely a strong ar'^^ument in favor of p(M'manent , trained men to till tlie reHp()nsil)le jxnition of prosecutors. We Ijclievo a jmlgu, if lie li:id his choice, would prefer an old expiMienced counsel in criminal prosecutions to one of less practice in these m itters, given the same al>iiity and th. "Then, as to the educator featui'es of n of the court, listening to ahle speeches by the counsel, gaining a useful, knowledge of law ami husiness, and peifofming their duties under the censorship of the jness and the puhlic. To say that two or three day.s' attendance as a (ii'and .Inror at an assi/e, once piM'haps in every six ov seven years, and often only once in a lifetime, is an educator, is not the kind of ai'gument tiiat would weigii witii the very men who use it as such if advanced in tlie trial of an ordinary action before them. Tiie visit to the public institutions is also intrnduced as an iiii|)ortant fcatnrs. This could be done by aj)pointing a few of the [letit jurors t'l do the same work at no expense, and with an e(|ually good result. The fact that these institutions are undei' the control of a governnu'iit responsible t;) the pco|)le and subject to the supervision of compcitent iiispectoi's, is suliii'ient giiai'antee liiat the public interest in that I'esjiect is well guarded, besides, it is scarcely necessaiy to point f)ut that fifteen or twenty (Jrand .lurors, attending in a body in a jn-efunctory sort of way, would be the least likelv of all men to have abuses thrust under tluiii' notice, or to fei-ret tiiem out if they existed " Again, as to influence from outsiders, is a well-paid, able, and carefully clioaen ci'own oflicial more likely to be swayed one way or the other in the discharge of his duties than is the judge who tries the case '! We do not believe that either would be affected, and the only facit which could give rise to such a suspicion, is tlie present system of making appointments on political grounds. " Let a good man be appointed for each circuit, and let his salary be sufficient, and he will also l)e beyond the reach of influence. Work which is only half done now, woulil be carefully and honestly ])ei'formed, and instead of counsel getting ids facts as the case ])rogresses, he would come into court iis a faithful guar(lian of ])ui)lic interest, .uid be of valuable assistance to the l)unch in clearing the innocent of imputation, and ))unishing the guilty for their crimes. Tlic police officers would not be, as they are now, left to giojie in the dark, to find that much of what they have done is discarded, and that their theory is entirely opposed to that of the crown counsel, when it is too late to ovei'come the difficulty. I he fact that for the past two or three ycii.rs in Toronto alone, the court and all its otiicial", the (Jrand duries, counsel, and witnesses, have been kej)! for days in tlie perfoiinance of laborious and inportant duties with scarcely a single conviction, siiows that something is wrong in the administration of criminal justice and re(|uires a speedy and effective remedy. We believe that the appointment of a public jjrosecutor for each cii'cuit, wliose duty it would be to make the most searching eii((uiries into evei'v criminal prosecution, to throw out all idiarges which are not well founded, to direct the police properly in tlie discharge of their duties, to keep a careful watch over the criminal eleinenis in their district, to see that every case which is brought to trial is thoroughly prepared, to guard against loose- 80 ncMH on tlie niio hand and uiiMcriipuloiiH /oal on the otiiei-, would Ix; a liIoHHing to tlio goviirnnieiit, tlic jiid^fs, iind llic |»id)lii", iiinl would Ik^ inofctiililc in evory way to tho irn^spoiiMiMc, uMtniincil, and looot't(^ii prfjudii'i'd hody wliicli Htan €^. Q>- OPINIONS OF JUDGES, ETC., WHO FAVOR ABOLITION, CONDENSED FROM REPLIES MADE IN ANSWER TO THE CIRCULAR OF THE MINISTER OF JUSTICE. SUPKEMK COUKT OF C^\NAI)A. Mr. Justice Owyiine, a very able criminal lawyer, engaged lor many years, l)ef()i'(! liis ele\ation to the Ontario Ijencii, as crown counsel, and who is now one of tlie justices of the supreme court at Ottawa, says : 'J'he itlea that tiie (irand Jury system constitutes in the present day the palladium of Uritish liherties and serves as a shield interposed hetween the sulijcct and the crown necessary for ihe preservation of tiie liherties of the former from tlie tyianny, injustice and oppression of tiie latter, jjartakes altogether of too media-val a character to justify its receiving a moment's consideration. No perils to the due admiiiistration of criminal justice can in his opinion nowadays arise from any interference on the })art of the crown. Tn some few state prosecut 'ons (Jrand Juries may have intervene- the gratification ot their own seltish, vindictive and malignant purposes. His Lordship gives other weighty reasons in favor of abolition, Init s]iace will not permit tlieir being even refei'red to, except to say tiiat the system might be abolished not only without detriment liut with positive adsantage to the due, speedy and inexpensive administration of the criminal law. Mr. Justice Taschereau . This learned gentleman, a colleague of Mr. Justice (i Wynne on the supreme court bench, and the author of tiie famous work on criminal law which bears his name, also comes cut in a most decided manner against the (1 rand Jury. He refers to the work of the criminal law commissioners of England, and shews that the weight of ojiinion preponderated against the maintenance of the (Jrand Jury. In refuting the arguments as to its anti(juity, he cites the following from the celebrated John Pitt Taylor : " There is an instinctive tendency in the minds of most men to admire and rev'jrence the wisdom of bygone ages, and to cling with affection to those institutions which have stood the test of centuries, Such feelings ai-e natural, nay, laudable, but they may be indulged too far. 'I here is no doubt that in the days suppose that the intervention of a (Jrand Jury is any longer necessary to protect the defendant from oppression and injustice." 91 Mr. .Iiistioe Tasclierean also states that as late as the year 1872 a learned jud^e ill Kiigland lield tliat a (iraiid Jury is not hound hy any rules of evidence. He also jjoints out tiuit it is undouhted law that a (Jrand Jury may present an indiotuient upon their own knowledge, and then asks, if a (iranil Jury acts arhitrarily where is the remedy? His i^ordship also cites the remarks of the late ("iiief Justice Harrison, in Ontario, who, (juoting Lords Hrougluim and Dcnman in sujiport of his views, called the (irand Jury an expensive nuisance; and the opinion of Lord CiielmsforJ, wii > often endeavored to improve them out of existence. oNTAiao. Hon. J. A. Boyd, the learned chancelloi-, of Ontario, says he has "long been of opinion that the time has come to abandon tiiis expensive, anomalous and circundf)cuting j)rocess. " The late Judge Sinclair : This gentleman (the autiior of many valuable legal works, and recently deceased,) after careful consideration, tiiought no harm could befall the country by the abrf)gation of the system. He states he was formei'ly of a different opinion, but that a iiund)er of c ses corning within his experience, in which some I'emarkable failures of justice had resulted from the iuibit which (irand Juries not infre(|uently use of usurping functions not l)elonging to tluim, and assuming those of tlie judge and tiie petit jury as well as their own, and of ti'ying cases given to them f(jr consi urts without any complaint being ii iide < f the alisence of a ju'eliininary investigation before a (irand Jury. This, adde* are often found fault witli as giving criminals too many chances to escape ; but it is rare that tiiey are suspected of condenniing innocent persons. The secret and ex partf proceedings before (irand Juries add considerably to the incon- veniences of the system, especially where the standard of jurors is low. Ho is under the impression that cases are not sufficiently considered by (Jrand Jurors and that they are too easily approached, challenges being unknown, and impossible opinions .ire often found before Grand Jurors meet together in their room. Suspicions of this kind are, by themselves, a great drawback in this mode of administering justice. Juiors owe their existence in England to the desire of providing a guarantee against the uinlue influence which the then organization of society and of the government, and former al)uses by persons high in authority justified the people to fear from permanent judges or officers appointed by the Crown. They are now no longer a bulwark of personal or political liberty. Their main office is now to control the decision of the magistrate or that of tiie judge and to guard against persecutions from motives of reveiigc, bias or interest. His Lordship's opinion is a very lengthy and able one. T liave extracted here and in another place all I can find space for. Judge Taschereau considers the Grand Jury ane\i; practiced before the justices of the pence were nmde, they being, as a rule, in the rural districts, not sufhciently educated and free from prejudice as to always properly fulfil the ottiue. Mr. ilustice bourgeois has found occasionally that the functions of (irand ifuries were useless and that their secri'cy load to treacherous })ro8ecutions anil gross injustice. " If the institution were alxili.shed I think the statute ought to provide that nf)l)ody is to be ariaigned or ])ut on liis trial before l)etty juries, unlexs a preliminary investigation has been made in his presence, by a competent officer.'" Mr. Justice Larue considers tliey are too much exposed to outside influences and tluvt the summoning them is very expensive aiul out of pi oportion with the services rendered. Mr. Justice I^oranger. His experieni^e as attorney general and at the bar and as a judge has convinced him that the system could be replaced with advantage by a proper system of preliminary investigation coupled with the appointment of pernriuent crown prosecutors. NOVA .SCOTIA. Attoruey-Cieueral Longley says that any change looking to tiie abolition of the jury system will luiturally meet with prejudice from many minds instinctively conservative in their tendencies. Hut the vital (jucstion is the practical utility of the system. He says the jury systetn in all Uritish countries haf been gradually undergoing a change for some time past. At one tinie no cause could be tried in the suj)reme court except before a judge and jury. The cumbersome and unsatisfact )iy character of tiie adjudication by un.«killed men on points of a strictly technical character soon became apparent, and juries were dispensed with except in certain cases. He says: "No incon- venience, so far as I am aware of, r. suited from this sweeping abolition of the functions of petit juries in civil cases. Indeed, it is the universal testimony of the bench and bar alike in tiiis pi'ovince that the adminivtraticm of justice has been vastly facilitated by the change " He points out that originally all criminal matters in Nova Scotia, except petty cases, were adjudicated l)y the supreme court. Since the recent passing of the Speedy Trials Act a majority of ,1)^11 criminal cases are tried before county judges by the consent of the per.sons themselves. In these cases there is no (jrand Jury, which body, in reality, passes upon Ijut a percentage of the cases of alleged crime. The favorite argument for the maintenance of the system of (irand Juries has been that it was unfair to the citizen that he should be exposed to the odium of sitting in a criminal box under a charge of felony, if there was not a fair and reasonable case against him. "Speaking from my own expeiience in such matters in Nova Scotia. I have no hesitation in stating tliat it is but rarely that the exercise of the functions of Grand Juries have been of much value in this regard. In the first place, as a rule, justices of the peace do not send up for trial cases which are the result of personal malignity. The tendency of justices is to lean to the side of leniency rather than severity in the adminis- tration of criminal justice. So far as my experience goes juries have repeatedly failed to find bills against persons, not from lack of abundant evidence to justify and require the putting of the accused upon trial, but frrm considerations of a personal and unsatisfactory character. " He sums up by saying that in Nova Scotia, at the present time, the Grand Jury is not a vitally important factor in the administration of criminal justice. Ui der the caption of " Criticisms of the Judges Reviewed," elsewhere, I have ventured to add an additional extract from the Hon. Mr. Longley's thoughtful and valualde opinion. Judge Johnston says that some time ago he formed the opinion that in the present state of society (irand Jiiries are not required to the due adminis- tration of justice, and are not essential to the legitimate security of the party 97 clmrged, hut that hih interests would he sufficiently guanled and suhserved were he to he tried on tlie coniniitnient of the coniinitting inajiistnite, with a limitation in eases of political oiFences or jjolitical liliels. .Iudsroceed- ings up to, and including prosecutions, shouldTie taken hy an othccr appointed for (ach county, or given districts, a man of respf)nsil)ility, knowledge ai\d known integrity. His whole attention shouhl !•()He which originally CttUed it into existence might and shouhl he devised and adopted." Ju^''*"«