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it is not determined that he has committed any crime. the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by responsible

parties to pay it to the government in case the accused [* 310] should fail to appear, would be sufficient security for his attendance; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. But in the case of felonies, the privilege of giving bail before trial was not a matter of right; and in this country, although the criminal code is much more merciful than it formerly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence of guilt is strong or the presumption great. Capital offences are not generally regarded as bailable; at least, after indictment, or when the party is charged by the finding of a coroner's jury;1 and this upon the supposition that one who may be subjected to the terrible punishment that would follow a conviction, would not for any mere pecuniary considerations remain to abide the judgment. And where the death penalty is abolished and imprisonment for life substituted, it is believed that the rule would be the same notwithstanding this change, and bail would still be denied in the case of the highest offences, except under very peculiar circumstances. In the case of other felonies it is not usual to refuse bail, and in some of the State constitutions it has been deemed important to make it a matter of right in all cases except on capital charges "when the proof is evident or the presumption great." 4

1 Matter of Barronet, 1 El. & Bl. 1; Ex parte Tayloe, 5 Cow. 39. 2 State v. Summons, 19 Ohio, 139.

United States v.

The courts have power to bail, even in capital cases. Hamilton, 3 Dall. 18; United States v. Jones, 3 Wash. 224; State v. Rockafellow, 1 Halst. 332; Commonwealth v. Semmes, 11 Leigh, 665; Commonwealth v. Archer, 6 Grat. 705; People v. Smith, 1 Cal. 9; People v. Van Horne, 8 Barb. 158. In England, when all felonies were capital, it was discretionary with the courts to allow bail before trial. 4 Bl. Com. 297, and note.

The Constitutions of a majority of the States now contain provisions to

When bail is allowed, unreasonable bail is not to be re[* 311] quired; but the constitutional principle that demands this is one which, from the very nature of the case, addresses itself exclusively to the judicial discretion and sense of justice of the court or magistrate empowered to fix upon the amount. That bail is reasonable which, in view of the nature of the offence, the penalty which the law attaches to it, and the probabilities that guilt will be established on the trial, seems no more than sufficient to secure the party's attendance. In determining this, some regard should be had to the prisoner's pecuniary circumstances; that which is reasonable bail to a man of wealth, being equivalent to a denial of right if exacted of a poor man charged with the like offence. When the court or magistrate requires greater security than in his judgment is needful to secure attendance, and keeps the prisoner in confinement for failure to give it, it is plain that the right to bail which the constitution attempts so carefully to secure has been disregarded; and though the wrong is one for which, in the nature of the case, no remedy exists, the violation of constitutional privilege is aggravated, instead of being diminished, by that circumstance.1

The presumption of innocence is an absolute protection against. conviction and punishment, except either, first, on confession in open court; or, second, on proof which places the guilt beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony stood mute wilfully, and refused to plead, a terrible mode was resorted to for the purpose of compelling him to do so; and this might even end in his death: 2 but a more merciful proceeding is

this effect. And see Foley v. People, Breese, 31; Ullery v. Commonwealth, 8 B. Monr. 3; Shore v. State, 6 Mo. 640; State v. Summons, 19 Ohio, 139; Ex parte Wray, 30 Miss. 673; Moore v. State, 36 Miss. 137; Ex parte Banks, 28 Ala. 89.

1 The magistrate in taking bail exercises an authority essentially judicial. Regina v. Badger, 4 Q. B. 468; Linford v. Fitzroy, 13 Q. B. 240. As to his duty to look into the nature of the charge and the evidence to sustain it, see Barronet's Case, 1 El. & Bl. 1.

2 4 Bl. Com. 324. In treason, petit felony, and misdemeanors, wilfully standing mute was equivalent to a conviction, and the same punishment might be imposed; but in other cases there could be no trial or judgment without plea; and an accused party might therefore sometimes stand mute and suffer himself to be pressed to death, in order to save his property from forfeiture. Poor Giles Corey, accused of witchcraft, was perhaps the only person ever pressed to death

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 present, 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. 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. 4, c. 2, tit. 2, §§ 14–16.

1 See Rev. Stat. of New York, Pt. 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 borrowedwhere a prisoner is ever examined on oath." People v. Thomas, 9 Mich. 318, per Campbell, J.

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

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