Potter Stewart

“ United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. 'If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment be a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed. ”

“ Congress not only provided that a person could be prosecuted only upon an indictment by a grand jury, but, as the record of the legislative debates shows, Congress was expressly aware that pertinency to the subject under inquiry was the basic preliminary question which the federal courts were going to have to decide in determining whether a criminal offense had been alleged or proved. ”

“ Price was put to trial and convicted upon an indictment which did not even purport to inform him in any way of the identity of the topic under subcommittee inquiry. At every stage in the ensuing criminal proceeding Price was met with a different theory, or by no theory at all, as to what the topic had been. Far from informing Price of the nature of the accusation against him, the indictment instead left the prosecution free to roam at large-to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal. ”

“ Of like relevance is the guaranty of the Sixth Amendment that 'In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; * * *.'
The constitutional provision that a trial may be held in a serious federal criminal case only if a grand jury has first intervened reflects centuries of antecedent development of common law, going back to the Assize of Clarendon in 1166. [10] 'The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. ”

“ If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subjectmatter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary.' Cong. Globe, 34th Cong., 3d Sess. 439 (1857) .
'This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. ”

“ All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. * * * I am aware that legislative bodies have transcended their powers-that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government ”

“ There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.' Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. ”

“ We reaffirmed this rule only recently, pointing out that 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.' Stirone v. ”

“ This legislation has now been repealed, but its substance is preserved in the more generalized provision of Rule 52 (a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which states that 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' [11]
There was apparently no other legislation dealing with the subject of indictments generally until the promulgation of Rule 7 (c) , Fed.Rules Crim.Proc., in 1946. ”