Page:Harvard Law Review Volume 8.djvu/440

424 HARVARD LAW REVIEW. favor of the view of Lindley, L. J., for if title has not passed as between the original owner and the bona fide purchaser, but has passed by estoppel as between the warehouseman and the latter, we should have a curious state of affairs. If the warehouseman knowing he was estopped gave up the goods to the purchaser, or if the purchaser replevied them, there would be nothing to prevent the original owner from bringing trover or replevin against the purchaser, for ex hypothesi the title has not passed as between them, and so in that case the loss would fall on the purchaser. If on the other hand the warehouseman, being indemnified by the owner, re- fused to give up the goods, and the purchaser brought trover, the final loss would fall on the original owner. Indictment and Information. — The defects of our grand jury as a means of beginning a criminal action have long been recognized, but the difficulties in the way of any radical change are by no means insignifi- cant. In some States the power of district attorneys or County Prosecu- tors to begin proceedings by information is extensive, and in two at least, Connecticut and California, this power is coming into frequent exercise. In Connecticut the prosecution of any offence not punishable by death or imprisonment for life, in California the prosecution of any offence whatever may begin by information (Conn. Gen. St. §§ 1599, 1610. Cal. Const., Art. i, sect. 8. Deering's Penal Code, §§ 809, 888). It will be interesting and profitable to observe the results of this experiment. That such a procedure has many advantages is obvious. It is quickly set in motion, errors are easily remedied, and the whole course of proceed- ings much accelerated. On the other hand the power thus given the district attorney is very great, and should have ample guaranties against misuse. It is not hkely that we shall evolve out of this an office much like that of the Public Prosecutor {Staatsanwalt, Proaireur de la Repub- liqiie) on the Continent of Europe. There seems to be no disposition here to intrust any single official with the sole power and duty of instituting criminal proceedings. The grand jury is probably in no danger of being abolished, or of having the scope of its action much limited by law. But it is not improbable that the near future will see some considerable ex- tension of the information as a concurrent alternative process. If this alternative process is wisely regulated, it is pretty certain that the grand jury will have little to do. The grand jury originated at a time when the administrative machinery for the detection of crime was very crude and defective. Its retention in later centuries was chiefly due to political reasons. It furnished a tolerably safe protection against governmental tyranny and oppression. That was the light in which the founders of our American judicial sys- tems still regarded it. But the past century has made great political changes, here and in England. We no longer fear the encroachments of a government above the people. As a defence against judicial usur- pation the grand jury is no longer necessary. Viewed by itself it is seen to possess many defects. It is a secret, irresponsible body, offering some opportunity for the gratification of private malice or revenge. It is usu- ally composed of men not well fitted to discharge such duties as rest upon it. It is swayed by popular passion and prejudice. We have all seen how tenderly it deals with lynchers. Its findings are frequently in- fluenced by local political views. It cannot meet often, and when it does,