I concur in the opinion of the Court in this case with much hesitation. I do not concur in some of the reasons which are given to sustain it. The Court held, in a well-considered and able opinion by Mr. Justice Shepherd in State v. Barker, 107 N. C., 913, that, although the term grand jury is not found in our Constitution, the section of the Bill of Rights guaranteeing immunity from criminal prosecutions, except upon “Presentment, Indictment, or Impeachment,” must be construed to mean “Indictment by a grand jury,” as defined by the common law, citing with approval the language of Judge Cooley in that connection. Const. Lim., 59. It was held, in that case, because, at common law, “the concurrence of twelve jurors was absolutely necessary” to find a bill of indictment, it was equally so in North Carolina, and that the Legislature had no power to dispense with such “absolute necessity.” English v. State, *63731 Ela., 340. If my investigation bad led me to tbe conclusion that tbe venue entered into and was an essential element, in tbe term “indictment” at common law, at tbe time of tbe “separation from tbe Mother Country,” I could not hesitate to declare that, in my opinion, it was not within tbe power of tbe Legislature to abrogate tbe common law in that respect. I cannot concur in tbe suggestion that such power is vested in tbe Legislature. Tbe people, with whom alone is political sovereignty, have'expressly declared that their governmental agencies must act and move within the. orbit assigned to them by tbe Constitution. There is no place for arbitrary power in our governmental system of checks and balances. I do not sympathize with tbe suggestion that no part of tbe common law is imbedded in our Constitution. Speaking of tbe common law, after noting some of its defects, Judge Cooley wisely says: “But, on tbe whole, tbe system was tbe best foundation on which to erect an enduring structure of civil liberty which tbe world has ever known. It was tbe peculiar excellence of tbe common law of England that it recognized tbe worth, and sought expressly to protect tbe rights and privileges of tbe individual man. Its maxims were those of a sturdy and independent race, accustomed, in an unusual degree, to freedom of thought and action, and to a share in tbe administration of public affairs, .and arbitrary power and uncontrolled authority were not recognized in its principles, * * * and, if tbe criminal code was harsh, it, at least, escaped tbe inquisitorial features which were apparent in tbe criminal procedure of other civilized countries, and which have been ever fruitful of injustice, oppression and terror.” That those who came to this colony and “builded” our institutions well knew and jealously guarded these great principles, every page of our early history illustrates. The language of Judge Cooley applies with special force to them. “Erom the first, the colonists in America claimed the benefit and protection of the common law. In some particulars, *638however, the common law, as then existing in England, was not suited to their condition and circumstances in the new country, and those particulars they omitted as it was put in practice by them. * * * Did Parliament order offenders against the laws in America to be sent to England for trial, every American was. roused to indignation and protested against the trampling under foot of that time-honored principle, that trials for crime must be by a jury of the vicinage.” When the courts in this and other States have been called upon to approve departures from common-law principles and procedure, in criminal trials, they have steadily refused to do so. In State v. Branch, 68 N. C., 186, it was shown that a Judge on the circuit had directed the witnesses to be examined by the grand jury in open court. Chief Justice. Pearson, sustaining a motion to quash the bill for that reason, said: “This procedure is opposed to the principles of the common law, which means ‘common sense.’ ” He further says: “There is not the slightest reason to believe that the practice of examining witnesses before a grand jury in public was ever in force and in use in the colony of North Carolina; very certainly such has not been the practice in the State of North Carolina, - and it must be rejected as inconsistent with the genius of a republican government.” In Lewis v. Comrs., 74 N. C., 194, Bynum, J., in a very strong opinion,' denying the right of a Solicitor to be present when the grand jury are discharging its duties, finds authority for the decision in the common law. After noticing the English practice,»as described by Blackstone and others, he says: “It is more consonant to justice and the principles of personal liberty. The powers of the grand jury, therefore, should not be extended further beyond these conservative and salutary principles than is clearly warranted by public necessity and the most approved precedents.” In State v. Miller, 18 N. C., 500, while the Judges differed in respect to the law, both the Chief Justice and Judge Gaston *639concurred that in considering questions pertaining to tbe rights of the accused, in trial by jury, recourse must be had to the ancient common law. The same is true in every case where the question has come into debate and the citizen has asserted his rights in respect to the maimer in which he could, be called to answer, and put upon trial, for a criminal offense. Millingan, ex-parte, 71 U. S., 2. In Byrd v. State, 1 How. (Miss.), 176, Sharkey, G. J., said: “The right of trial by jury, being of the highest importance to the citizen, and essential to liberty, was not left to the uncertain fate of legislation, but was secured by the Constitution of this and all other States as sacred and inviolable. The question naturally arises, How was it adopted by the Constitution ? That instrument is silent as to the number and qualifications of jurors; we must, therefore, call in to our aid the common law for the purpose' of ascertaining what was meant by the term ‘jury.’ It is a rule that when a statute or the Constitution contain terms used in the common law without defining particularly what is meant, then the rules of the common law must be applied in the explanation.” The Opinion of the Judges, 41 N. H., 550,-strongly states the law in this respect. Brucker v. State, 16 Wis., 356; People v. Powell (Cal.), 11 L. R. A., 75. I agree, of course, that there is much of the common law which is in force in this State by virtue of the Eevisal 1905,-ch. 15, sec.-932, which is but the re-enactment of the Acts of 1715 and 1778, and, as to this, the Legislature may, as it has in many instances done, repeal or modify it.
In respect to those elementary principles and provisions upon which the security of life, liberty and property depend, guaranteed by Magna Oharta, which was engrafted either in express terms or by necessary implication into- our Bill of Eights,' I do not concede that the power exists, in either department of the government, to abrogate or modify them. To do this is among “the reserved rights” to be exercised only by the people themselves, in convention. This is one of *640“the powers not delegated” to the legislative department of the government. I cannot, therefore, assent to the proposition, sometimes found in judicial opinions, that the Legislature has all of the -powers of the British Parliament, except when expressly restricted. In the discussion of this very important and delicate question, Judge Cooley says : “But to guard against being misled by a comparison between the two, we must bear in mind the important distinction * * * that with the Parliament rests, practically, the sovereignty of the country, so that it may exercise all the powers of the government, if it will do so; while, on the other hand, the Legislatures of the American States are not the sovereign authority, and though vested with the exercise of one branch of the sovereignty, they are nevertheless, in wielding it, hedged in on all sides by important limitations, some of which are imposed in express terms, and others by implications which are equally imperativeConst. Lim., 105. He further says : “So long as the Parliament is recognized as rightfully exercising the sovereign authority of the country, it is evident that the resemblance between it and American Legislatures, in regard to their ultimate powers, cannot be traced very far. The American Legislatures only exercise a certain portion of the sovereign power. The sovereignty is in the people; and the Legislatures which they haye created are only to discharge a trust of which they have been made a depository, but which has been placed in their hands with well-defined restrictions.” This, I think, the sound view. Nichols v. McKee, 68 N. C., 430.
The difficulty which I have experienced in arriving at a conclusion in this case is to fix the line at which the Legislature may change or abrogate the procedure, venue, etc., in regard to indictments as they were by the common law recognized and administered by the courts in England. That it may not lessen the number required to concur in finding a bill or permit witnesses to be examined before the grand jury *641in public or to permit tbe prosecuting officer to remain with the grand jury while in session, is settled upon the ground that such things were not permissible by the common law. The only decided case which was cited by counsel, or I have been able to find in this country, in point, is Swart v. Kimball, 43 Mich., 443. There, the statute provided that for cutting timber on the public lands the person charged could be proceeded against in the county where the offense was committed or such other county as the Attorney-General should direct. The defendant in error was prosecuted, under the act, in a county oi;her than that in which the offense was committed. He was arrested upon a capias and upon habeas corpus, was discharged. He brought the action against plaintiff in error who procured the information and arrest and recovered judgment for false imprisonment. Several irregularities in the proceedings were alleged.
In regard to the validity of the statute authorizing the change of venue, Qooley, J., said that the act was “manifestly in conflict with one of the plainest and most important provisions of the Constitution.” Now, that in jury trials it is implied that the trial shall be by jury of the vicinage, is .familiar law.
Blackstone says the jurors must be of the visne or neighborhood ; which is interpreted to be of the county. 4 Black. Com., 350. This is an old rule of the common law, citing Hawk P. C., b., 2 c., 40; 2 Hale P. 0., 264. He refers to certain statutory changes made by Parliament prior to the separation of the colonies, saying: “But it is well known’ that the existence of such statutes, with the threat to enforce them, was one of the grievances which led to the separation of the American Colonies from the British Empire. If they were forbidden by the unwritten Constitution of England, they are certainly unauthorized by the written constitutions of the American States, in which the utmost pains have been *642taken to preserve all the securities of individual liberty. * * * But no one doubts that the right to a trial by jury of the vicinage is as complete and certain now as it ever was; and that, in America, it is indefeasible.” After pointing out in strong language the injustice and oppression to which the citizen may be subjected, if compelled to answer an indictment in a county otherwise than that in which the offense was alleged to have been committed, he concludes: “We have not the slightest hesitation in declaring that the act, so far as it undertakes to authorize a trial in some other county than that of the alleged offense, is oppressive, unwarranted by the Constitution and utterly void.”
I find a number of cases, cited by counsel, denying the right of the State to remove a criminal trial from the county of the alleged offense for local prejudice. It is so held in a strong opinion by the Supreme Court of California, People v. Powell, supra. Judge Cooley says: “But this may be pressing the principle too far.” It was so held in Kirk v. State, 41 Tenn., 344, and Osborne v. State, 24 Ark., 629. But in both these States the Constitution expressly guaranteed a trial in the county in which the offense was alleged to have been committed.
I have carefully examined the history of parliamentary legislation in England on the subject for the purpose of learning how far the venue in criminal proceedings has been regarded in that country, as fixed by Magna Charta. Fitz James Stephens in the “History of the Criminal Law,” vol. 1, 274, gives an interesting account of the statutory changes made in the law in regard to venue. Some of them are pointed out in the opinion of the Chief Justice. See, also, Mews’ Fisher’s Com. Law Dig., vol. 2, 2263.
In Brucker v. State, supra, Dprovide that seventeen persons might compose the grand jury, said: “The foundation of the objection is, that this was the rule at common law (that *643tbe grand jury should consist of not more than twenty-three or less than twelve) recognized by the Constitution, against which the Legislature had no" power to provide. Upon an examination of the authorities, we find no such fixed common-law principle. The only inflexible rule, with-respect to numbers, seems to have been that there could not be less than twelve nor more than twenty-three. The concurrence of twelve was necessary to find a bill, and there could not be more than twenty-three, in order that twelve might form a majority. * * * We are of the opinion, therefore, that it is competent for the Legislature, within the limits prescribed' by the common law, to increase or diminish the number of grand jurors to be drawn and* returned without infringing the rights of the accused granted by the Constitution.” In Byrd v. State, supra, Sharkey, G. J., discussing the subject, says: “The Legislature cannot abolish or change substantially the panel or jury, but it may, it is presumed, prescribe the qualifications of the individuals composing it.”
I have noted these cases to show that it is held by courts adhering to the principle that the guarantee of immunity from criminal prosecutions, otherwise than by indictment, that the Legislature may change the law in particulars nonessential, such as qualification of jurors, etc., but in regard to essentials, such as number, etc., the constitutional provisions must be read and construed in the light of the common law, and are not subject to legislative change.
In the absence of express legislative enactment, there can be no question that the venue is the county in which the offense is alleged to have been committed. I incline to the opinion, at least to the extent of surrendering my doubts to the judgment of the majority of the Court, that the act is not violative of the right of the defendant. In doing so, I am also influenced by the wise and salutary principle so frequently announced by the greatest Judges who have sat upon the State and Federal benches, that every presumption should *644be made to support tbe constitutionality of a statute. While I am by no means certain that tbe beneficial results anticipated by tbe Legislature will be realized, I sympathize so strongly with the desire and purpose to provide all possible means for detecting and, after trial and conviction, punishing those engaged in the crime of lynching, hoping to suppress it, that I am the more willing to surrender my doubts to its best judgment. It is the first time in our history that the question has been presented, because it was not until the Act of 1893 that the grand jury of any other county than that of the offense was given power to find a bill of indictment.
It would seem that in England it has been deemed necessary to change the venue and permit indictments to be found in counties other than those in which the offense was committed. Eor many years the statute permitting the Court, upon motion of the Solicitor, supported by affidavits, to remove a criminal case for trial to an adjoining county on account of local feeling, has been invoked without question. While the right to remove, after a judicial determination that a fair trial could not be had in the county of the offense, might be distinguished from the right to indict and try in the county of the Solicitor’s selection, I concede that the recognition of the validity of the removal statutes weighs in my mind in favor of the Act of 1893.
I have felt impelled to say this much, because of the importance of the subject and a desire to proceed with the utmost caution in experimental legislation of this kind. While it is not for the judiciary to trench upon the domain of the Legislature, I trust that I may, without impropriety, express the hope that the occasion and condition which, in its judgment, called for this act, may soon pass away; and that we may return to the common-law way of securing to every man immunity from being called to answer for violation of the law otherwise than by indictment preferred by a grand *645jury summoned from tbe county where the crime is supposed to have been committed. Cooley, 392; Story Const., sec. 1769. In addition to the humane policy which protected a man in his hour of trial from being carried away from his home, deprived of the opportunity to have his witnesses, and the benefit of such reputation and character as he had made among his neighbors, this ancient way placed upon the people of each county or neighborhood the responsibility for securing a fair, firm, and just administration of the law, detection and punishment of the guilty and protection of the innocent. How far removing from the people of each county this stimulus and by carrying their citizens into adjoining counties for trial, will promote the end desired, is not clear to my mind.
These are questions, however, committed to the wisdom of the Legislature. I disclaim any right to question the constitutionality of an act of the Legislature because it does not accord with my judgment. This would be to move out of the orbit assigned to the Judge. Judges must not be wiser than the law, but be content to construe and declare it in the light of principle, precedent and constitutional limitations.