by John Marshall Harlan

“ Thus, in California nothing stands between the citizen and prosecution for his life except the judgment of a justice of the peace. Had such a system prevailed in England, in respect of all grades of public offenses, the patriotic men who laid the foundation of our government would not have been so persistent in claiming, as the inheritance of the colonists, the institutions and guaranties which had been established by her fundamental laws for the protection of the rights of life, liberty, and property. ”

“ And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name, until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldon been any contest between the government and the citizen, which required the existence of the grand jury as a protection against oppressive action of the government. ”

“ I submit, however, with confidence, there is no foundation for the opinion that, under Magna Charta or at common law, the right to a trial by jury in a capital case was deemed of any greater value to the safety and security of the people than was the right not to answer, in a capital case, upon information filed by an officer of the government, without previous inquiry by a grand jury. ”

“ I omit further citations of authorities, which are numerous, to prove that, according to the settled usages and modes of proceeding existing under the common and statute law of England at the settlement of this country, information in capital cases was not consistent with the 'law of the land' or with due process of law.' Such was the understanding of the patriotic men who established free institutions upon this continent. ”

“ Magna Charta-upon which rested the rights, liberties, and immunities of our ancestors-was called, said Coke, 'the charter of the liberties of the kingdom, upon great reason, because, liberos facit, it makes the people free.' Hallam characterizes the signing of it as the most important event in English history, and declares that the instrument is still the keystone of English liberty. ”

“ It is difficult, in my judgment, to overestimate the value of the petit jury system in this country. A sagacious statesman and jurist has well said that it was 'the best guardian of both public and private liberty which has been hitherto devised by the ingenuity of man,' and that 'liberty can never be insecure in that country in which the trial of all crimes is by the jury.' Mr. ”

“ In the secrecy of the investigations by grand juries, the weak and helpless-proscribed, perhaps, because of their race, or pursued by an unreasoning public clamor-have found, and will continue to find, security against official oppression, the cruelty of mobs, the machinations of falsehood, and the malevolence of private persons who would use the machinery of the law to bring ruin upon their personal enemies. ”

“ It is difficult, however, to perceive anything in the system of prosecuting human beings for their lives, by information, which suggests that the state which adopts it has entered upon an era of progess and improvement in the law of criminal procedure. ”