now substituted; the court entering a plea of not guilty for a party who, for any reason, fails to plead for himself.

Again, it is required that the trial be speedy; and here also the injunction is addressed to the sense of justice and sound judgment of the court. In this country, where officers are specially appointed or elected to represent the people in these prosecutions, their position gives them an immense power for oppression; and it is to be feared they do not always sufficiently appreciate the responsibility, and wield the power with due regard to the legal rights and privileges of the accused. When a person charged with crime is willing to proceed at once to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of

witnesses. Very much, however, must be left to the [* 312] judgment of the prosecuting officer in these cases; and

the court would not compel the government to proceed to trial at the first term after indictment found or information filed, if the officer who represents it should state, under the responsibility of his official oath, that he was not and could not be ready at that time. But further delay would not generally be allowed without a more specific showing of the causes which prevent the State proceeding to trial, including the names of the witnesses, the steps taken to procure them, and the facts expected to be proved by them, in order that the court might judge of the reasonableness of the application, and that the prisoner might, if he saw fit to take that course,

for refusal to plead in America. 3 Bancroft's U. S. 93; 2 Hildreth's U. S. 160. For English cases, see Cooley's Bl. Com. 325, note. Now in England the court enters a plea of not guilty for a prisoner refusing to plead, and the trial proceeds as in other cases.

'It is the duty of the prosecuting attorney to treat the accused with judicial fairness; and to inflict injury at the expense of justice is no part of the purpose for which he is chosen. Unfortunately, however, we sometimes meet with cases in which these officers appear to regard themselves as the counsel for the complaining party rather than the impartial representative of public justice. Bu we trust it is not often that cases occur like a recent one in Tennessee, in which the Supreme Court felt called upon to set aside a verdict in a criminal case, where by the artifice of the prosecuting officer the prisoner had been induced to go to trial under the belief that certain witnesses for the State were absent, when in fact they were present and kept in concealment by this functionary. Curtis v. State, 6 Cold. 9.

2 See this discussed in Ex parte Stanley, 4 Nev. 113.

3 Watts v. State, 26 Geo. 231.

secure an immediate trial by admitting that the witnesses, if pres ent, would testify to the facts which the prosecution have claimed could be proved by them.1

It is also requisite that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge, and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions; and the requirement is fairly met with, if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a

prurient curiosity, are excluded altogether.

[* 313] * But a far more important requirement is that the proceeding to establish guilt shall not be inquisitorial. A peculiar excellence of the common-law system of trial over that which has prevailed in other civilized countries, consists in the fact that the accused is never compelled to give evidence against himself. Much as there was in that system that was heartless and cruel, it recognized fully the dangerous and utterly untrustworthy character of extorted confessions, and was never subject to the reproach that it gave judgment upon them.2

1 The Habeas Corpus Act, 31 Ch. II. c. 2, § 1, required a prisoner charged with crime to be released on bail, if not indicted the first term after the commitment, unless the king's witnesses could not be obtained; and that he should be brought to trial as early as the second term after the commitment. The principles of this statute are considered as having been adopted into the American common law: post, 345.

2 See Lieber's paper on Inquisitorial Trials, Appendix to Civil Liberty and Self-Government. Also the article on Criminal Procedure in Scotland and England, Edinb. Review, Oct. 1858. And for an illustration of inquisitorial trials in our own day, see Trials of Troppman and Prince Pierre Bonaparte, Am. Law

It is the law in some of the States, when a person is charged with crime, and is brought before an examining magistrate, and the witnesses in support of the charge have been heard, that the prisoner may also make a statement concerning the transaction. charged against him, and that this may be used against him on the trial if supposed to have a tendency to establish guilt. But the prisoner is to be first cautioned that he is under no obligation to answer any question put to him unless he chooses, and that whatever he says and does must be entirely voluntary. He is also to be allowed the presence and advice of counsel; and if that privilege is denied him it may be sufficient reason for discrediting any dam aging statements he may have made.2 When, however, the statute has been complied with, and no species of coercion appears to have been employed, the statement the prisoner may have made is evidence which can be used against him on his trial, and is generally entitled to great weight. And in any other case

except treason the confession of the accused may be [* 314] Review, Vol. V. p. 14. Judge Foster relates from Whitelocke, that the bishop of London having said to Felton, who had assassinated the Duke of Buckingham, "If you will not confess, you must go to the rack," the man replied, "If it must be so, I know not whom I may accuse in the extremity of my torture, Bishop Laud, perhaps, or any lord of this board." "Sound sense," adds Foster, "in the mouth of an enthusiast and ruffian." Laud having proposed the rack, the matter was shortly debated at the board, and it ended in a reference to the judges, who unanimously resolved that the rack could not be legally used. De Lolme on Constitution of England (ed. of 1807), p. 181, note; 4 Bl. Com. 325; Broom, Const. Law, 148; Trial of Felton, 3 State Trials, 368, 371; Brodie, Const. Hist. c. 8. A legislative body has no more right than a court to make its examination of parties or witnesses inquisitorial. Emery's Case, 107 Mass. 172.

1 See Rev. Stat. of New York, Pt. 4, c. 2, tit. 2, §§ 14-16.

2 Rex v. Ellis, Ry. & Mood. 432. However, there is no absolute right to the presence of counsel, or to publicity in these preliminary examinations, unless given by statute. Cox v. Coleridge, 1 B. & C. 37.

* It should not, however, be taken on oath, and if it is, that will be sufficient reason for rejecting it. Rex v. Smith, 1 Stark. 242; Rex v. Webb, 4 C. & P. 564; Rex v. Lewis, 6 C. & P. 161; Rex v. Rivers, 7 C. & P. 177; Regina v. Pikesley, 9 C. &. P. 124; People v. McMahon, 15 N. Y. 384. "The view of the English judges, that an oath, even where a party is informed he need answer no questions unless he pleases, would, with most persons, overcome that caution, is, I think, founded on good reason and experience. I think there is no country - certainly there is none from which any of our legal notions are borrowed — where a prisoner is ever examined on oath." People v. Thomas, 9 Mich. 318, per Campbell, J.

In treason there can be no conviction unless on the testimony of two wit

received in evidence to establish his guilt, provided no circumstance accompanies the making of it which should detract from ts weight in producing conviction.

But to make it admissible in any case it ought to appear that it was made voluntarily, and that no motives of hope or fear were employed to induce the accused to confess. The evidence ought to be clear and satisfactory that the prisoner was neither threatened nor cajoled into admitting what very possibly was untrue. Under the excitement of a charge of crime, coolness and self-possession are to be looked for in very few persons; and however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of criminal courts bear abundant testimony to the contrary. If confessions could prove a crime beyond doubt, no act which was ever punished criminally would be better established than witchcraft; and the judicial executions which have been justified by such confessions ought to constitute a solemn warning against the too ready reliance upon confessions as proof of guilt in any case. As "Mr. Justice Parke several times observed" while holding one of his circuits," too great weight ought not to be attached to evidence of what a party has been supposed to have said, as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say."2 when the admission is full and positive, it perhaps quite as often happens that it has been made under the influence of the terrible fear excited by the charge, and in the hope that confession may

And

nesses to the same overt act, or on confession in open court. Const. of United States, art. 3, § 3.

See Mary Smith's Case, 2 Howell's State Trials, 1049; Case of Essex Witches, 4 ib. 817; Case of Suffolk Witches, 6 ib. 647; Case of Devon Witches, 8 ib. 1017. It is true that torture was employed freely in cases of alleged witchcraft, but the delusion was one which often seized upon the victims as well as their accusers, and led the former to freely confess the most monstrous and impossible actions. Much curious and valuable information on this subject may be found in Superstition and Force," by Lea; "A Physician's Problems," by Elam; and Leckey, History of Rationalism.

66

Note to Earle v. Picken, 5 C. & P. 542. See also 1 Greenl. Ev. § 214, and note; Commonwealth v. Curtis, 97 Mass. 574; Derby v. Derby, 21 N. J Eq. 36.

ward * off some of the consequences likely to follow if guilt [* 315] were persistently denied.

A confession alone ought not to be sufficient evidence of the corpus delicti. There should be other proof that a crime has actually been committed; and the confession should only be allowed for the purpose of connecting the defendant with the offence. And if the party's hopes or fears are operated upon to induce him to make it, this fact will be sufficient to preclude the confession being received; the rule upon this subject being so strict that even saying to the prisoner it will be better for him to confess, has been decided to be a holding out of such inducements to confession, especially when said by a person having a prisoner in custody, as should render the statement obtained by means of it inadmissible. If, however, statements have been made [* 316] before the confession, which were likely to do away with

*

1 In Stringfellow v. State, 26 Miss. 157, a confession of murder was held not sufficient to warrant conviction, unless the death of the person alleged to have been murdered was shown by other evidence. In People v. Hennessey, 15 Wend. 147, it was decided that a confession of embezzlement by a clerk would not warrant a conviction where that constituted the sole evidence that an embezzlement had been committed. So on an indictment for blasphemy, the admission by the defendant that he spoke the blasphemous charge, is not sufficient evidence of the uttering. People v. Porter, 2 Park. Cr. R. 14. And see State v. Guild, 5 Halst. 163; Long's Case, 1 Hayw. 524; People v. Lambert, 5 Mich. 349; Ruloff v. State, 18 N. Y. 179.

2 Rex v. Enoch, 5 C. & P. 539; State v. Bostick, 4 Harr. 563; Boyd v. State, 2 Humph. 390; Morehead v. State, 9 Humph. 635; Commonwealth v. Taylor, 5 Cush. 605; Rex v. Partridge, 7 C. & P. 551; Commonwealth v. Curtis, 97 Mass. 574; State v. Staley, 14 Minn. 105; Frain v. State, 40 Geo. 529; Austine v. State, 51 Ill. 236; People v. Phillips, 42 N. Y. 200; State v. Brockman, 46 Mo. 566. Mr. Phillips states the rule thus: "A promise of benefit or favor, or threat or intimation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, will be sufficient to exclude a confession made in consequence of such inducements, either of hope or fear. The prosecutor, or prosecutor's wife or attorney, or the prisoner's master or mistress, or a constable, or a person assisting him in the apprehension or custody, or a magistrate acting in the business, or other magistrate, has been respectively looked upon as having authority in the matter; and the same principle applies if the principle has been held out by a person without authority, in the presence of a person who has such authority, and with his sanction, either express or implied." 1 Phil. Ev. by Cowen, Hill, and Edwards, 544, and cases cited. But we think the better reason is in favor of excluding confessions where inducements have been held out by any person, whether acting by authority or not. Rex v. Simpson, 1 Mood. C. C. 410; State v. Guild, 5 Halst. 163; Spears v. State, 2 Ohio, N. s.