The defendant Conklin set up, as a separate defence, that he was a clerk in the store of French, and not a partner, and that he acted simply as *124such clerk and by direction of Ms principal in the delivery of the articles sold. This is very general, and cannot be considered as an allegation that Conklin sold the liquor in Ms capacity as clerk, and by the direction of Ms principal. If, however, that may be fairly implied from what is alleged, it does not constitute a valid defence. Nothing is said indicating compulsion; and he who willingly follows the direction of another in the perpetration of an offence cannot, for that cause, shield himself from responsibility. The law allows of no such excuse, nor should it.
Both defendants plead that there had been no preliminary proceedings against them before a magistrate, pursuant to the provisions of the statute (2 R. S., 706, §§ 2, 13, and several following sections). This formed no defence to the indictment, and must be deemed invalid as a plea. If there had been a fatal defect in the proceedings before the indictment was found, the defendants should have presented proof of the facts and moved to quash the indictment. The answer tendered no issue which could be tried by a jury. As, however, the action of the court below, in denying a motion to that effect, could have been reviewed, and the court actually passed upon the question involved, justice to the defendants would seem to call for its. consideration by the court.
The provisions in the Revised Statutes, relative to the primary examination of persons accused of crimes, do not purport to limit the right of the people, through their officer, to institute accusations before the grand jury. They relate to charges preferred ordinarily by private individuals before inferior magistrates. In most cases, it is very proper that the persons charged should have a hearing before they are imprisoned or subject to the necessity of finding bail for their appearance. If the defendants are right in their supposition, that no case can be brought before the grand jury unless the magistrate shall commit the accused or put him under a recognizance, the determination of the magistrate to fully discharge him would be conclusive against the public. *125If he should grossly err or act from improper motives there would be no remedy. His determination would amount to an acquittal, for there is no provision for a re-investigation, nor could one be had if the previous examination should be invested with the immunities of a trial. It cannot be that the legislature designed that the public should be thus concluded by an informal investigation, and when it is not required that the officer entrusted with the management of criminal proceedings in behalf of the people should be present or have any notice of the proceedings.
The right of the people to commence proceedings for the punishment of crimes, before the grand jury, cannot be taken away by implication. To effect that requires a positive and direct prohibition. That is the general rule, and I can see no reason for departing from it in this important branch of jurisprudence.
There are several statutory provisions which imply that accusations for crime may, in the first instance, be preferred before a grand jury. Courts are required specially to charge grand juries to inquire into all violations of certain statutes. This would be improper and unnecessary if grand juries were limited to the examination of such cases only as had been previously before magistrates and were deemed by them proper for subsequent action. Grand juries are forbidden to disclose the fact of an indictment having been found against any person, for felony, not in actual confinement, until the defendant in such indictment shall have been arrested thereon. (2 R. S., 726. § 30.) There would seem to be no great, if any, necessity for this provision, if grand juries were confined to the examination of cases where the accused were in confinement or under recognizance. It is provided (2 R. S., 725, § 34) that if any offence shall be committed during the sitting of any court of oyer and terminer and court of general sessions, after the grand jury attending such court shall have been discharged, such court may, in its discretion, by an order, to be entered in its minutes, direct the sheriff to sum*126mon another grand jury. But for what purpose, if nothing could be done until the case should undergo a preliminary examination before a magistrate? So, too, the power given to district attorneys, by the act of October 26, 1847, to issue warrants for the arrest of defendants under indictment, would seem to be unnecessary, if such indictment could be found only against prisoners or those who had entered into recognizance to appear in court and not depart without leave.
Upon the whole, I am satisfied that the objection which I have last considered is one of modern agitation, and that, like the generality of such objections, it -has no solid foundation.
The judgment should be affirmed.
Judgment affirmed.