V. Proceedings in criminal actions prosecuted by indictment. This branch of the subject of criminal procedure is by far the most important which has engaged the attention of the commissioners, embracing, as it does, the whole body of the law, in its practical application to the arrest and accusation of those charged with public offences, and to the proceedings necessary for their conviction and punishment. In proposing a series of rules applicable to this branch of procedure, and governing the officers and courts by whom the criminal law is administered, the Commissioners have essentially departed from the plan of the execution of their duties as contained in their report of a code of procedure in civil actions. In that report, they did not deem it necessary to go further into the details of the practical steps required in the conduct of a cause, than was essential to the successful carrying out of the principles which they proposed. The rules there prescribed were designed for the government of the courts of record of civil jurisdiction, embracing a body of intelligence and learning upon which the Commissioners felt a safe reliance might be placed, not merely for a faithful execution of the law, but for an intelligent and discriminating application of its provisions. They were designed also for that class of the profession, whose practice in those courts and whose experience of the rules governing legal procedure, afforded, as the Commissioners believed, a just assurance that minuteness of detail would rather tend to confuse than to aid them in the application of principles, which they had hoped were expressed with sufficient clearness, and which, if that hope were well founded, could be readily and beneficially reduced to practice. Upon that confidence they are still willing to rely, so far as the code of civil procedure is concerned; not doubting that when its provisions have become more familiar by practice, and its defects, not peculiar to this more than to any other human undertaking, shall have been remedied either by legislation or by benign judicial construction, it will be found to result in great benefit to the people, and in a still higher degree of moral elevation to the legal profession.

In the code of criminal procedure, however, a more detailed system of regulation is indispensable. In the rules which it prescribes, should be found a guide to the citizen, in the performance of the duties which are cast upon him for the preservation of public order, to the unprofessional magistrate, in the exercise of a difficult and delicate discretion, and to the executive officers of the law, in the performance of duties designed for its due enforcement without an unnecessary or oppressive encroachment upon the rights of the citizen. This guide, in which the existing statutes are greatly deficient, and much of which is now furnished by subtle and almost inaccessible rules of the common law, the Commissioners have felt bound to supply, by provisions which, though minute are not unnecessary, and which shall distinctly and plainly place before all, not merely the duties they may be called upon to perform, but the manner in which they are to be performed. The provisions referred to constitute no inconsiderable portion of the Code; and in their arrangement as well as their style, the study has been to make them as plain and simple as possible. Where warrants have been prescribed or undertakings of bail required or allowed, their form has in every instance been given. In short, the object has been to make the Code a body of practical directions, intelligible in their character, with the addition of the proper means effectually to carry them out. With these preliminary remarks, applicable more especially to the subject now under review it remains to consider the more important principles embraced in this portion of the Code, and some of the reasons which have led the Commissioners confidently to recommend their adoption.

1. The first subject embraced in this part, is the local jurisdiction of públic offences. (Sec. 120-132.)

In the provisions applicable to this subject, the Commissioners have brought together in a condensed form the existing enactments, now scattered through various parts of the statutes, as well as the rules defining the jurisdiction of this state over offences commenced in another and consummated here; and the local jurisdiction of offences

cominenced and consummated in different counties.

It is not deemed necessary to refer particularly to these provisions. It is sufficient to say of them, that they have been carefully made to comprise all the existing law on the subject.

2. Next follow the provisions regulating the time of commencing criminal actions; (Sec. 133-137;) in respect to which the existing enactments have been substantially preserved, declaring that there is no limitation of time, wherein which a prosecution for murder must be commenced; and fixing the period of two years as the time within which a prosecution for marrying another under a false personation, and for abduction and seduction-and three years as the time within which all other prosecutions for public offences must be commenced.

3. The third title of this part embraces the information, and the proceedings thereon, to the commitment, inclusive. (Sec. 138-213.) It prescribes the mode in which an information must be laid before a magistrate against a party charged with a public offence-the issuing of the warrant for his arrest,-the execution of the warraut by an officer, or the arrest of a party by an officer or a private person, without a warrant―the retaking of the party after an escape or rescue,—and the examination of the case and discharge of the party, or holding him to answer. In respect to all these provisions, with the exception of such as introduce new and important principles, the Commissioners must content themselves with referring the legislature to the Code itself; and as to those to which they intend making a more explicit reference, their observations must necessarily be brief.

Among the matters embraced in this title,-in addition to full and ample directions as to the mode of executing a warrant for the arrest of a party, the Commissioners have inserted a body of provisions defining the rights and duties as well of public officers, as of private citizens, in the arrest without a warrant, of persons charged with crime. In respect to these it may be remarked, as has been already done in reference to the right of lawful resistance to the commission of an of

fence, that they have been hitherto left wholly unregulated by positive or written law. If, in the one case, a system of appropriate regulations might have been excusably omitted, the Commissioners do not well see with what propriety they could have overlooked their introduction in respect to this branch of duty. The good order of socie ty requires, in order that crime may be detected and punished, that the arrest of criminals should in all cases be justified, where, but for the existence of a well defined right, it would elude both detection and punishment. It is upon this great principle that the rules of the common law, by which the extent of this right have been defined, are established. If it could be reasonably supposed that in the thousand emergencies which arise, the public officer or the citizen was so well versed in those principles as to be able safely to apply them, there would be no necessity for legislation. But when it is remembered that in all these cases he acts at the peril of a lawful resistance, even to the extent of taking his life by the party arrested, or of the consequences of a civil action, where he has transcended his powers, the duty of the legislature, clearly to define them, would seem to be beyond dispute. It is a case of no unfrequent occurrence, that in the attempted arrest of a public offender, the citizen, who incurs great risk for the vindication of the law, is subjected to consequences like these; and the books are not barren of cases where the sacrifice of the life of an innocent person, acting under a mistaken but honest view of his duty, has been successfully defended on the ground that he had transcended his authority. It may be true that the common law sufficiently defines it; but it is equally true that its sources are hidden from the view of those who are most frequently called upon to exercise the power in question; and it is for the legislature to say whether it should be left in uncertainty and doubt, when by a few and well timed enactments, the evil can be so easily remedied. The importance of this subject was not overlooked by Mr. Livingston, in his report of a Penal Code, already referred to; and the Commissioners cannot forbear quoting the

forcible and eloquent remarks with which he urges upon the legislature the important and solemn duty of clear and distinct legislation upon this subject. "Officers of justice," says he, "often uneducated and overbearing men, either do not know, or designedly exceed the bounds of their authority. The accused sometimes submits to illegal acts; at others, resists those to which he ought to submit. The citizen when legally called on to enforce the execution of the law, refuses to obey, or makes himself liable to a prosecution for aiding in an illegal arrest; and it is believed that of all the cases of murder, manslaughter, violent assault and false imprisonment, reported in the books, no inconsiderable proportion will be found to have arisen from ignorance of rights and duties in granting warrants, in making arrests, or resisting them-ignorance inevitable, from the state of our laws; for where (it is asked on this as it has been on former occasions,) where is the necessary information to be obtained? The written law is silent; the oracles who pronounce that which is unwritten, only speak when the case has already happened; and the unfortunate citizen, called on to act or suffer at a moment's warning, is forced to do it at his own risk; for those to whom he has confided the care of framing rules for his government, have hitherto obstinately refused, or negligently ommitted to dictate tl em. It is time that this duty should be done it is more than time that this reproach should be taken away from our legislation. You declare, that every man who kills an officer in the legal discharge of his duty, is guilty of murder, and shall suffer death. You say that resistance to an unlawful arrest is justifiable; and you cruelly and wantonly refuse to explain what is a lawful and which an unlawful arrest. You refer to the contradictory and confused decisions of courts in a foreign country, for information on this all-important point. Do you understand those laws? Are they clear?-De gn then to clothe them in the words of legislative authority: publish them to your constituents. Are the cases contradictory? -Tell us which of them is the law. Are they confused and uncer

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