Page:Harvard Law Review Volume 5.djvu/404

388 388 HA R YARD LA W RE VIE W. happened if the petit jury had kept up the older methods of pro- cedure, as the grand jury in criminal cases did, and does at the present day, 1 — if, instead of hearing witnesses publicly, under the eye of the judge, it had heard them privately and without any judicial supervision, it is easy to see that our law of evidence never would have grown up. This it is, — this judicial oversight and control of the process of introducing evidence to the jury, that gave it birth ; and he who would understand it must keep this fact constantly in mind. James B. Thayer. Cambridge. 1 Two centuries ago the grand jury came near losing its ancient procedure. In Shaftesbury's Case, 8 How., St. Tr. 759 (1681), they were in fact compelled to receive their evidence publicly in court. But the vigorous protests of the jury and the fruitless outcome of the attempt led to an abandonment of it.