That such men are open to the influence of the many interested parties that are called before them, either as prosecutors, witnesses, defendants, or accused, on whose conduct they are to adjudicate, with their numerous friends and partisans behind the scenes, there can be no doubt. Repeated instances have come within our own short experience, where the most corrupt, though successful efforts, have been made to divert the current of public justice, from its pure and wholesome source, into the most poisoned and perverted channels. Nor are these practices confined to any particular state, or peculiar to the lately settled parts of the republic, but extend to the more advanced, influential, and civilised districts. Nay, we have known, even in the" empire city" of New York, where a large proportion of its grand jury have been previously tutored in the interest of the accused party, with manuscript memorandums, or written briefs of instructions, secretly prepared by the accused, or his counsel, in their pockets; interspersed with the foulest abuse, and slander of the character and motives of the prosecutor, and witnesses, who were to appear before them to give evidence, with their minds in part made up, and prepared for an acquittal before any inquiry had been gone intoin short, the entire case was prejudged before the prosecutor, or complainant had appeared to give his evidence. We have witnessed this much, and subsequently heard the accused, who stood charged with a heinous crime, exult in the efficiency of the means planned for his escape; which had thus

THE RECORDER'S CHARGE.

157

enabled him to successfully evade the constituted law of the land, and soar above its influence

But where the industry and adroitness of the agent --the interference, and personal exertions of friends, have been but partially exerted, and are insufficient to quash an embryo criminal proceeding, an investigation is sometimes gone through; the practice of these tribunals in America admitting the hearing of witnesses on both sides, for the defendant, or accused, as of the prosecutor, with evidence to rebut, as well as to sustain, whatever charge or accusation may be made, or brought before them. We confess to have been somewhat surprised on first ascertaining these additional labours, as of the duties of an American grand jury; and on hearing explained to them, as of the obligations of the trust committed to their keeping, in the charge of the Honourable the Recorder of New York, assumed to be the general practice throughout all parts of the republic; wherein his Honour directed them,-" by no means to limit their inquiry to merely ascertaining the sufficiency of evidence to support an indictment, but to sedulously investigate each case, as it might come before them; to hear and examine witnesses, not only in sustainment, but also in refutation of each accusation, and to pass their verdict, by finding or ignoring the bills, as if empanelled in the petty jury box to try the case."

This examination of witnesses on both sides, is often gone through, in the spirit, or disposition we have before observed; while pretexts are at all times, and by such means, easily furnished to warrant the acquittal of the accused, however his

guilt, should such reconcile with the secret wish, or personal inkling of a majority of the jurors present. Still the principle is open to other objections, and may be charged in positive violation of one of the most essential provisions of the constitution; which declares each citizen entitled as of 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 on his defence. Yet here is constituted an irresponsible tribunal, dark and secret in its proceedings-often, and as we have known it, dishonest in its purpose, and " purely mischievous" in its results; assuming with its own, the other, and defined duties of a special or petty jury-proceeding to hear the case, and determine its merits, in the absence both of prosecutor and the accused, and of counsel to represent either, as also of a judge, or other competent legal person, to declare and explain the law; while removed from the protection and wholesome surveillance of public observation, so generally and so usefully exercised on all other such occasions.

We must not be told of the advantages that can possibly counterbalance this evil--this gross perversion of the first principles of common justice; nor can we join in an admission of the protection that such is said to afford to the innocent, the unobtrusive, and well-meaning citizen; who, it is contended, would be often dragged before some other less considerate public body, to meet charges preferred in the guise, and assumed confidence of truth, but with the covert and dishonest purpose, to invade the character and reputation of innocent

BY GRAND JURIES.

159

parties; who are, on the other hand, afforded by this system, an opportunity to relieve themselves from every injurious imputation, without being compelled to do so in open court, and in the gaze of thousands, as witnesses to so humiliating a necessity. Such indeed are the arguments in the mouth of every American, with whom we have conversed on the subject, and who, admitting this perversion in their criminal code, are anxious to excuse this innovation; perhaps forgetting the while, that if the party accused is really innocent, he has no certain opportunity by this means of establishing such fact, or so long as he is partially ignorant of the precise nature of the charge, or accusation made against him; as also the evidence adduced, and perhaps suborned to sustain it; and that should he be subsequently compelled to appear before a petty jury, by reason of this perversion, he is consequently prejudiced in their opinion of his guilt, if only from the circumstance of judgment having already been pronounced against him, by an assumed impartial tribunal, in every way competent to investigate both sides of the question-the truth, as well as the falsehood, of the accusation; with the presumption, however illfounded, of their decision being based on strict impartiality, and the merits of the case, sustained by the evidence before them. It is unreasonable to expect that men, however personally disinterested, and prepared to do justice between their fellow men, can divest themselves, when in the petty jury box, of this bias, on any second investigation of a case,-without being influenced by a strong presumption—

as to the probable guilt of

a reasonable prejudice, as to the the accused.*

A stranger in any part of the United States, has few inducements to complain of wrong done him, with at least any reasonable hope, or prospect of redress; for independent of the strong tide of prejudice with which he is beset, he has also to meet the certain opposition of some local interest, or cabal, to silence every just, or reasonable remonstrance. Should he nevertheless insist upon his complaint being received, he is surrounded with difficulties, that at every step remind him of his imprudence, and inflict more suffering more real punishment, than what perhaps he is so impatient to redress. His own security in the form of bonds to the "sovereign people," are deemed insufficient to insure his attendance to prosecute at the next sessions, or sitting of the court. As a stranger, he is possibly without friends, that would join with him in the required recognizance for this purpose; and in default, he is not unfrequently sent to prison, to reflect

* In the charge of the Honourable the Recorder of New York (Judge Tallmadge) to the September (1843) Grand Jury of that city, he earnestly exhorted them to "make full and complete investigation in all cases presented to them, before true bills of indictment were rendered, as the effect of an indictment, in case of clear acquittal before a petty jury, was nearly as injurious to the reputation of the accused, as if convicted."

† All processes, bonds, recognisances, and other official documents that in England are made in the name of the Crown, are, in America, generally drawn up " In the name of the People of the United States, Free and Independent ;" or, "The People of the State of New York, Free and Independent," or of such other state as it may be.