CHAPTER VI.

Criminal Law of the United States-Its mode of distributionTrial by Jury-Grand Juries in the United States-Their component materials-Their being subject to undue influence in the discharge of their duties-New York Grand JuryInstances of its moral unfitness and profligacy-Essential difference between an English and American Grand JuryOfficial Charge of the Honourable the Recorder of New York to the Grand Jury of that city, explaining the duties within their observanc-Uncertainty of redress on complaint in criminal cases-Sworn informations unnecessary as a preliminary in the arrest of a party complained againstNo protection afforded to the citizen against vexatious or illegal arrests-Justices of the Peace in the United StatesTheir general incapacity, their venality and worthlessnessExtreme latitude given to the Magistracy-American Police -Their general efficiency and organization-The late "Ashburton Treaty" with Great Britain, with reference to the surrender of fugitives from justice arriving in either countryPolitical Refugees in the United States -The general indifference and cold-heartedness of their reception-The expatriated Pole-Emmett -Sampson -McNevin and others, victims of the late Irish Insurrection-Fugitive Debtors in the United States-Affidavit of indebtedness sworn to in England, sufficient to hold a defendant party to bail in the United States-Juries in the United States, selected by ballot -This precaution frequently insufficient to insure impartiality, or guard against the perversion of justice on the part of the prosecution-Modes by which Juries are frequently packed in the United States, their selection by ballot notwithstanding.

THE distribution of the criminal law is equally entitled to consideration. On it depends our best security for liberty and life and the enjoyment of those advantages secured by the exertion, the industry, and perseverance of every citizen. It is manifestly the interest of all, the Peasant as the

Peer-the low-born and unpretending, as the wealthiest and most exalted in the land, to preserve it undefiled, and beyond the control of every external, or undue influence to watch with diligent and anxious care, its daily and even progress, and to mark with loud and universal reprehension, every deviation from strict rectitude and principle, in its dispensation. Always bearing in mind the important law maxim, that "it is the duty of a judge to declare and expound the law, as he may find it, not to make, or alter it."

Every citizen of the United States is supposed to be secured, under the constitution, in the full and free enjoyment of the right to a fair and impartial trial by a jury of his peers to be confronted with the witnesses against him, and to have the assistance of counsel in his defence.* He is also supposed to derive from the prompt and equitable administration of the law under which he lives, security and protection for his person, and the peaceable enjoyment of his property and civil rights :-though from the continued change in the law in this respect, at least in its practice, making it a somewhat difficult matter to at all times rightly understand it, the trial by jury may be considered, in many of the States, if not altogether abrogated, yet so altered in its general features, as to present it under a very different aspect from that in which we recognise it in our English jurisprudence. These observations will apply to the eastern, as to the middle states; as well to the

* Article 6th of the amendments to the United States' Constitution.

state of New York, certainly in advance of all other parts of the Union, in the fixedness and understood principles of its judicatory, as to the more lately settled parts of the republic.

The English law, in this particular, that which Americans affect to adopt as their rule, has wisely and mercifully placed, the two-fold barrier of a presentment and trial by jury, between the liberties of the subject, and the prerogative of the crown. "It has with excellent forecast," observes Sir William Blackstone," contrived, that no man shall be called to answer for any capital crime, unless on the prepa. ratory accusation of twelve or more of his fellow subjects, and that the truth of every accusation should be afterwards confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion.”

Notwithstanding the eulogium of this able and erudite commentator on the institution of the grand jury, its utility at the present day, is frequently and not inaptly questioned. A late distinguished writer on modern jurisprudence, speaking on this head, observes, "It must be acknowledged, that it (the British grand jury system) is one of the many relics of antiquity, which Englishmen worship out of mere superstition. The use of finding an indictment, before a man suspected of a capital offence can be submitted to trial was, that no one suspected merely of guilt, should be subject to the hardship of imprisonment, and the expense and delay of a public trial, at the discretion of an individual, at a period when trials only came round once in seven years, and

when the powers of the law were wielded by fierce, impatient, and arbitrary barons, or the ministers of an arbitrary king; a security like this, against the dreadful hardship of imprisonment of any length up to seven years, was of no light importance. Since the 2nd and 3rd of Philip and Mary, which conferred upon justices of the peace the power of imprisonment before trial, the grand jury, which now only sits at the time the court sits, at which the alleged offence may be tried, has evidently lost all power to save any man from the hardship of undue imprisonment, and seems really to serve no purpose whatever, but that of furnishing to the actual delinquent an additional chance of escape. The court appointed to try the man in the best mode, is ready to try him—then why try him twice?-first, in a bad and insufficient way, and only after that, in a good and final way.

"A grand jury must do one of two things. It must send a man to trial, or discharge him. It must find the bill a true bill, or the contrary. In all cases where it sends a man to trial, it neither does good, nor evil, for the man is tried, and sustains the consequence of his trial, exactly as if no such thing as a grand jury had been in existence. In the case in which the grand jury discharge, the man must be either innocent or guilty. If innocent, the grand jury is useless again, for immediately, or in a short space, the man would have received the same discharge, from the court that would have tried him. The only case, therefore, in which a grand jury could do anything, which would not be done without it, is, the case in which it dis

charges a man really guilty, whose guilt would have been ascertained by the court. There is only one case then in which it can be anything but useless, and that is, in a case in which it is purely mischievous."

We should almost have supposed that when the writer had penned the foregoing observations, he had been well instructed by previous intimacy with the system as practised in the United States; the abuse and disregard of every principle of justice and impartiality, the private injury and wrong, assured and protected by these tribunals, that may in very truth be considered, as "multiplying the chances of escape" from justice, and rendering the lives and properties of almost every individual, more or less insecure. However inefficient, or otherwise useless, grand juries in England may be considered, in the furtherance and aid of public justice, they at least possess the negative attribute of doing no intentional, or deliberate mischief, or of unjustly interfering between the due administration of the laws, and the parties that may come before them. To a grand jury, made up of the materials that generally constitute such bodies in England, composed of men, not only of very considerable wealth in their respective counties, which presumes them to possess some stake, in its orderly and peaceable deportment, but of men, whose honesty and singleness of purpose,-liberal and extended education, would make them in every way competent to assume its duties; whose characters are without stain, and beyond reproach, and whose rank and high standing in society renders them impervious to every attempt at