magistrate, as is substantially proposed by the Commissioners, (sec. 190,) "to give any explanation he may think proper of the circumstances appearing in the testimony against him, and to state any facts that he thinks will tend to his exculpation." (Livingston's Penal Code, 507, Art. 173.) In the same spirit, also, the English Commissioners, in their eighth report already referred to, (p. 55, Art. 32,) proposed a provision that "if any case be made out against the accused, he must be asked what he has to say against the charge, and his answer or defence is to be taken down in writing.”

Notwithstanding, however, the obvious policy of the law in providing for the defendant this mode of exculpation, it has been, not unfrequently, and it might almost be said without exaggeration, uniformly, supposed in practice, that the examination of the defendant was designed for wholly different purposes. Instead of his being informed, as the fact is, that it is furnished to him as a shield and is not to be used against him as a sword, he is by a loose course of practice, if no other motive be imputable, led to believe that it is one of the ordinary proceedings against him, having in view the establishment of his guilt. He is accordingly examined by a series of searching questions, oftentimes proceeding upon the assumption of his guilt, and is driven to the alternative of equivocating as to facts, or of denying circumstances plainly true, or of what is occasionally his resort, declining to answer. Those who are in the slightest degree conversant with criminal trials, can well attest how successfully the adoption of either of these alternatives, can be used against the defendant on his trial. If he equivocate, or if he deny a circumstance the existence of which is certain, the most conclusive inference of guilt is drawn against him. And if, as his only refuge from the torture of a cross-examination, he decline to answer the question, he learns, when it is too late, the fatal character of his error, in supposing that his legal privilege will protect him from the inference of guilt uniformly urged against him from the mere fact of his silence.

To counteract, by appropriate legislation, consequences like these, scems to be a plain and palpable duty. It is but carrying out the spirit of the rule familiar to every lawyer, and having its foundation in the plainest reason, that the exercise of a right shall not prejudise the party by whom it is exerted. It was well said by an eminent English judge, when a counsel was commenting on the refusal of a witness to answer a question, the answer to which tended to criminate him, that the comment was unfair, because the law gave the witness the right to decline, and that it would cease to be a right, the moment it could be used to his prejudice.

Deeply impressed with the correctness of these views, the Commissioners have proposed to dispense entirely with this examination, and to substitute in its place, what the law designed should alone be furnished, an opportunity to the defendant to make a statement in his exculpation. They accordingly provide, that when the examination of the witnesses on the part of the people is closed, the magistrate shall inform the defendant that it is his right to make a statement in relation to the charge against him; that the statement is designed to enable him, if he see fit, to answer the charge, and to explain the facts alleged against him:-that he is at liberty to waive it,—and that his waiver cannot be used against him on the trial. (Sec. 188) If he elect to make the statement, it is then to be taken by the magistrate, who, instead of being left at liberty to put every form of question which his ingenuity may suggest, is restricted to asking the defendant general questions as to his age and residence and the like, and to asking him to give any explanation he may think proper, of the circumstances appearing against him, and to state any facts which he thinks will tend to his exculpation. (Sec. 190.)

Another portion of the examination of the case by the magistrate, which has been conducted with extreme looseness, prejudicial alike to the people and the defendant, is the examination of the witnesses for and against the charge. The existing statutes require nothing

more than that the magistrate shall examine the witnesses and reduce their testimony to writing, and require their signatures thereto. In taking down the testimony, the practice has been very common to take such portions of the statements of the witness as the magistrate deems material; omitting entirely the questions put, and professing to give nothing more than the substance of the evidence. When it is remembered how essential it is, in testing the credibility of witnesses who have been previously examined, to point with certainty to their former statements on oath, relating to the same subject, and how important this right may become to the people as well as to the defendant, it will be readily admitted that the testimony in the precise form in which it was given, leaving no room for doubt or misconstruction as to its meaning, should be carefully preserved. Daily experience shows that in the mode in which depositions are taken by the examining magistrate, when the attempt is made to impeach a witness by the production of his deposition, nothing is more common than his escape from the force of the contradiction, by his own statement and that of the magistrate, that the substance of the testimony only and not the language of the witness had been taken. It is proposed to correct this evil, by requiring that the deposition of the witness contain the questions put and the answers given; each answer being distinctly read to the witness as it is taken down, and being corrected or added to until it is made conformable with what he declares is the truth; and that if a question put be objected to and overruled, or the witness decline answering it, that fact, with the ground on which the question was overruled or the answer declined, must be stated. (Sec. 196.)

Another practice, which has been extensively pursued, and which, in the view of the Commissioners, is incompatible with the due administration of justice, is the refusal to permit the defendant to have copies of the depositions taken against him. It has been customary in some portions of the state, when the depositions are returned to the court, to deliver them over to the district attorney, by whom they are retained with as much secrecy as a council in a civil action would use

in concealing from his adversary, the testimony by which success was to be attained. The right of the defendant to the inspection of the depositions, has been frequently resisted by public prosecutors, as incompatible with the interests of the prosecution. It has been said in justification of this practice, that if the opportunity were afforded to the defendant of inspecting these depositions, he might thereby be permitted to escape under cover of a false defence; and even courts, when applied to, to enforce what the Commissioners believe to be the right of the defendant, have refused to lend their aid in its enforcement. It is a rule of the common law, that the defendant shall have every reasonable opportunity to meet and answer the charges and proofs against him; and the Commissioners are not disposed to treat with seriousness, the answer that the right should not exist, because by possibility it may be abused. The theory of a prosecution is, that the defendant is called upon to explain circumstances appearing against him, which, if unexplained, tend to establish his guilt; and to deny him this right, is to convert a criminal prosecution into the means of destroying the defendant, by springing upon him on the trial, when wholly unprepared to explain them, a state of facts, which, if the opportunity had been allowed, would have admitted of abundant explanation.

In accordance with views similar to those here expressed, the British parliament have within a few years enacted, "that all persons who shall be held to bail or committed to prison for any offence against the laws, shall be entitled to require and have, on demand, (from the person who shall have the lawful custody thereof, and who is thereby required to deliver the same,) copies of the examinations of the witnesses respectively upon whose depositions they have been so held to bail or committed, on payment of a reasonable sum for the same, not exceeding 14d. for each folio of 90 words: provided, that if such demand shall not be made before the day appointed for the commencement of the assizes or sessions at which the trial is to take place, such person shall not be entitled to have any copy of such ex

amination of witnesses, unless the judge or other person to preside at such trial shall be of opinion, that such copy may be made and delivered without delay or inconvenience to such trial; but it shall nevertheless be competent for such judge, &c., if he shall think fit, to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged. And all persons under trial, are entitled, at the time of their trial, to inspect, without fee or reward, all depositions (or copies thereof) which have been taken against them, and returned into the court before which such trial shall be had." (6 and 7 W. 4 ch. 114, sec 3, 4.)

The subsequent provisions of this title (sec. 197-213,) require no other remark, than that they are in accordance with the existing practice, except in a few unimportant particulars, which will be sufficiently explained by a recurrence to the code itself. It may be observed, however, that the commissioners have supplied brief forms of warrants upon holding the defendant to answer, adapted to the circumstances of each case, and containing upon their face a concise and plain statement of their object and effect.

They have likewise recommended, (sec. 213,) a provision that the papers in the case before the examining magistrate, be returned to the court, whether the defendant be discharged or held to answer. By the present practice, this is not done, except where the defendant is held to answer. A due regard for the interests of the public, seems to render it proper that an examination of the case by the court should be had, notwithstanding the discharge of the defendant by the magistrate, to the end that it may be submitted to the grand jury, if in the judgment of the court, the magistrate has erred in discharging the defendant. It is, moreover, proper that these proceedings should be preserved as public records, instead of being left, as they may be under the present system, exposed to loss or to uses prejudicial to an innocent party.

The next proceeding in order, after the commitment of the defendant, is the formation of a grand jury, to which the case must be submit