error will result; because the prosecution cannot, on the one hand offer evidence to prove guilt, and which by the very offer is vouched for as tending to that end, and on the other hand for the purpose of avoiding the consequences of the error, caused by its wrongful admission, be heard to assert that the matter offered as a confession was not prejudicial because it did not tend to prove the guilt of the accused.

The true test of the admissibility of a confession is, that it is made freely, voluntarily, and without compulsion or inducement of any sort. In order to render a statement admissible, the proof must be sufficient to establish the fact, that the making of it was voluntarily; that is to say, that from causes which the law treats as legally sufficient to engender in the minds of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent. "But a confession in order to be admissible must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted." And "the rule excludes not only direct confessions, but any other declaration tending to implicate the prisoner in the crime charged, even though, in its terms, it is an accusation of another, or a refusal to confess." 81

§ 131. Fourth and fifth amendments violated by federal legislation.-Judge Cooley, in his "Constitutional Limitations, after referring to the struggle in England, just before our revolution, for the preservation of the common-law guaranties of personal security and civil liberty, approaches the discussion of the fourth amendment with these words: "All these matters are now a long way in the past; but it has not been deemed unwise to repeat in the state constitutions, as well as in the consti

81 Bram v. United States, 168 U S. 532, 573 (42:568) and authori ties cited; Wilson V. United

States, 162 U. S. 613, 624 (40: 1090.

83

If

tution of the United States, the principles already settled in the common law upon this vital point in civil liberty." 82 there was ever any doubt as to the wisdom of embodying in the federal constitution the great common-law principles of civil liberty, that doubt has been dispelled by a decision of the United States supreme court, announced in 1885, and since the publication of the fourth edition of Judge Cooley's work, holding void certain federal legislation, as being in violation of the fourth and fifth amendments, and which Justice Bradley characterized as "abhorrent to the instincts" of both the English and American people. The purposes of that legislation were to prevent and detect frauds upon the revenue, and to impose penalties and forfeitures upon the offenders, and authorized the district judges whenever it should appear to their satisfaction by affidavit, that a fraud upon the revenue had been committed or attempted by persons interested or engaged in the importation of merchandise, to issue warrants to the marshals or fiscal officers of the government, directing such officers or their agents and assistants to enter any place or premises where any invoices, books or papers relating to such merchandise or fraud were deposited, and to seize and carry away the same, to be inspected and used as evidence by the officers of the government in prosecuting the offenders. When those acts had been in force about five years, the attention of congress was called 'to their harsh and objectionable features, and an act was then passed providing that: No answer or other pleading of any party, and no discovery, or evidence obtained by means of any judicial proceeding from any party or witness, shall be given in evidence, or used against such party or witness, or his property or estate, in respect to any crime, or for the enforcement of any penalty or forfeiture, by reason of any act or omission. of such party or witness.84

The act last mentioned had the effect to repeal those parts of the former acts which had afforded the officers of the government the convenient method, by warrants, of obtaining evi

82 Constitutional

Limitations

(4th Ed.) ch. X. pp. 371, 372.

82 12 U. S. Stat. at L. ch. 76, sec. 7, p. 740; 14 U. S. Stat. at L. ch. 188, sec. 2, p. 547; 18 U. S. Stat. at L. ch. 391, sec. 5, p.

187; Boyd v. United States, 116 U. S. 616, 641 (29:746); Counselman v. Hitchcock, 142 U. S. 547, 586 (35:1110).

84 15 U. S. Stat. L. ch. 13, p. 37.

dence in suits for penalties and forfeitures against violators of the revenue laws;85 and in a subsequent act revising the laws upon the subject of revenue frauds and prosecutions therefor, it was provided that: In proceedings for forfeitures and penalties under the act, the court upon the application of the district attorney, should make an order requiring the defendant or claimant to produce in evidence any book, invoice, or paper belonging to or under his control, and which would in the belief of the district attorney tend to prove any allegation made by the United States; and if the defendant or claimant should, after notice, fail or refuse to comply with the order the allegations of the government should be taken as confessed, unless the failure or refusal should be explained to the satisfaction of the court.8 86 The supreme court, in a case decided by it at the October term, 1885, held that the provision of the act last above referred to, is unconstitutional and void as applied to suits for penalties or to establish a forfeiture of the party's goods, being repugnant to the fourth and fifth amendments of the constitution; and that an order of the court made under the act, in a suit to establish a forfeiture of the claimant's goods, and requiring him to produce his invoice in court for the inspection of the government attorney and to be offered in evidence by him, was an unconstitutional exercise of authority, and the inspection of the invoice by the attorney and its admission in evidence were erroneous and unconstitutional proceedings. The decision in that case has been twice approved by the supreme court.88

§ 132. Presentment or indictment by grand jury required in prosecution for infamous crimes.-"No person," it is declared by the fifth amendment to the federal constitution, "shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." In all criminal prosecutions in the courts of the United

85 Boyd v. United States, 116 U. S. 616, 641 (29:746).

86 18 U. S. Stat. at L. chap. 391, sec. 5, p. 187.

87 Boyd v. United States, 116 U. S. 616, 641 (29:746).

88 Counselman v. Hitchcock, 142 U. S. 547, 586 (35:1110); Lees v. United States, 150 U. S. 476 (37: 1150).

89

States, in the classes of cases mentioned in this constitutional provision, "a presentment or indictment of a grand jury" is jurisdictional, and the court has no authority to proceed without it. By the English common law, informations by the attorney general, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was meant any offense which at common law operated to cause a total forfeiture of the offender's lands, or goods, or both; the question whether the prosecution must be by indictment, or might be by information depended upon the consequences to the convict himself. The fifth amendment, declaring in what cases a grand jury should be necessary, and in effect affirming the rule of the common law upon the same subject, substituting for capital crimes or felonies, the words "a capital or otherwise infamous crime," manifestly had in view that rule of the common law, and the framers of the amendment used the language just quoted in the full sense of its value and of its necessity.90

§ 133. Office and functions of the grand jury.-The office and functions of the grand jury, as an institution of the English common law were two fold, namely: (1) To present to the courts having criminal jurisdiction formal written accusations against persons who had been guilty of the commission of crimes; and (2) to prevent unfounded, unjust and malicious prosecutions against innocent persons. And upon these great principles of public policy and public justice, the institution was adopted as an agency of the federal government."1

The origin, development, history and functions of this institution, and its usefulness as an instrumentality of government have been stated by a distiguished jurist in the following language: "The institution of the grand jury is of very ancient origin in the history of England-it goes back many centuries. For a long period its powers were not clearly defined; and it

89 Ex parte Bain, 121 U. S. 1, 14 (30:849); Mackin v. U. S. 117 U. S. 348 (29:909); Ex parte Wilson, 114 U. S. 418 (29:89); Parkinson v. U. S., 121 U. S. 281 (30:959).

14

90 Ex parte Bain, 121 U. S. 1, (30:849); Ex parte Wilson,

114 U. S. 418 (29:89); Mackin v. United States, 117 U. S. 348 (29: 909); U. S. v. De Walt, 128 U. S. 393 (32:485).

91 Ex parte Bain, 121 U. S. 1, 14 (30:849); Jones v. Robbins, 8 Gray, 329.

would seem from the accounts of commentators on the laws of that country that it was at first a body, which not only accused, but which also tried, public offenders. However this may have been in its origin, it was at the time of the settlement of this country an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, be put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name; until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the grand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it come from government, or be prompted by partisan passion or private enmity. No person shall be required, according to the fundamental law of the country, except in the cases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial." 97 92

92 Field, Justice, charge to Grand Jury, reported in 2 Sawy. 667, and quoted in the opinion of the court in Ex parte Bain, supra.

"It has been said that, since there is no danger to the citizen from the oppression of a monarch, or of any form of executtive power, there is no longer need of a grand jury. But, whatever

force may be given to this argument, it remains true that the grand jury is as valuable as ever in securing, in the language of Chief Justice Shaw, 'individual citizens from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the pro