mon law. In respect to the practical proceedings preparatory to the trial, they have recommended a course of proceeding as to the order of the trial of causes and their postponement, which they believe will be conducive of great convenience both to the bench and bar, and at the same time promote the substantial rights of the people and of the defendant. Great complaints have existed, (especially in those parts of the state where there is a large amount of criminal business,) of the inconvenience resulting from a want of regulation on this subject. The order of the trial of criminal cases is, as the practice now stands, entirely under the control of the district attorney, who may bring them on in any order and at any time he may see fit. This has led to much embarrassment, not merely to the defendant, who is thus compelled to be ready for trial at any moment, but to the court, whose business is often delayed and thrown into confusion, by the necessity of the postponement of the trial which arises from the fact that no rule as to the order of business is prescribed. The Commissioners propose as a remedy for this inconvenience, that a calendar shall be made of all the indictments ready for trial at each court, arranging them in the order in which the indictments were found, and distinguishing between felonies and misdemeanors, and between the cases in which the defendant is in custody or on bail. The cases are then to be tried in this order; first, those in which the defendant is in custody; and second, those in which he is on bail. Either party may apply, however, for a postponement of the trial; but if no sufficient cause be shown for the postponement, it must be tried or dismissed, subject to the right of the court, according to the justice of the case, to determine whether or not a dismissal of the indictment shall be a bar to another prosecution.

On the subject of challenges to the jury,--the only provision to which the Commissioners deem it necessary specially to call the attention of the legislature, is that which lays down the rule as to the exclusion of a juror, on the ground that he has formed or expressed an opinion.

The practice on this subject is now very loose, in consequence, it is believed, of a misapprehension as to the extent to which the cases attempting to define it, have gone in laying down the rule. It is proposed, that, upon a challenge for implied bias, (answering to what is now known as a challenge for principal cause,) it must appear, in order to exclude the juror, that he has formed or expressed an unqualified opinion that the defendant is guilty or not guilty of the offence charged. (Sec. 445, Subd. 8.) This provision is not, however, intended to impair the rule, that upon the trial of a challenge for actual bias, (answering to a challenge for favor,) the triers may exercise a sound discretion in admitting or excluding the juror, where his opinion does does not come up to this standard. Nor does it alter the existing doctrine, that the decision of the triers cannot be reviewed. (Sec. 455, 456,) It is hoped these provisions will effectually remove the embarrassments growing out of the undefined eharacter of the present rules, and that while they will take away from the defendant no substantial right, they will afford to the public the full assurance that the defendant will be promptly as well as fairly tried.

In the portion of the code applicable to the trial itself,the Commissioners have introduced a variety of provisions, some of them declaratory of the existing law; and others proposing such additions or substitutes as do not conflict with its spirit. (Sec. 460-499.) The length to which this report has already extended, precludes the possibility of anything more than a general reference to some of the more prominent of the latter class of provisions. In the first place, it is proposed that the defendant's counsel should close the argument of the case to the jury. This provision, independently of the high authority of Mr. Livingston, seems to the Commissioners to be well sustained, not merely by every consideration of humanity, but by every principle of justice. In defending its introduction, that learned jurist has furnished an argument so satisfactory and conclusive to the minds of the Commissioners, that they deem it unnecessary to add any remarks of their own to what he so well presents.

"The order," says he, "in which the case is opened to the jury, and the proof introduced, is the same as that now in use; but a material change is made, by giving the closing argument to the defendant. It was thought that this was proper and just, because it is an advantage, that is to say, a benefit to one party, that the other does not and cannot, from the nature of things, enjoy. To whom shall this be given, to the accuser or the accused,-to him who asserts or him who denies? Humanity and justice seem to dictate the answer. Every address to a judge must be supposed to contain a new allegation of fact, a new argument, or a new answer to rebut those which have been offered on the other side. To close the debate, therefore, without suffering the accused to reply to such allegation or argument, would be, in so much as regards it, to decide on his case without hearing him. The same thing may be said of the prosecution. The remedy would be to suffer the argument to go on, until both parties declared they had nothing further to say; but this would rarely happen, and never until the discussion had been protracted to a length so highly inconvenient as not to be permitted. It seems, then, as has been said, that the nature of the case imposes the necessity of giving this advantage to the one party or the other. To give it to the prosecution, sometimes defeats the ends of justice, by enlisting the feelings of humanity on the side of the accused. There is in human nature, when not perverted, a feeling repugnant to oppression, which generally supposes power to be wrong, and ascribes innocence to weakness, whenever they come in competition with each other; and few cases give such scope to the imagination to exert itself in this way, as that of a criminal on his trial. Squalid in his appearance, his body debilitated by confinement, his mind weakened by misery or conscious guilt, abandoned by all the world, he stands alone, to contend with the fearful odds that are arrayed against him. It is true, b he has counsel assigned him; but here again the same feelings operate, to lead the judgment astray. This counsel is generally the youngest counsellor at the bar, who is thus made to enter the lists with one of the highest abilities and standing,—with a reputation so well established as

to have made him the choice of government, as the depository of its interests. If you add to all this, the decided advantage of the closing argument, given to a practised advocate, whom long habit has taught to avail himself of every weak argument or suspicious fact, and a zeal in the performance of his duty has taught to believe it proper to do so do this, and of two opposite effects, one must be produced, both injurious to the fair administration of justice: either the jury will be swayed by the sentiment I have endeavored to describe, and feel an undue bias in favor of the prisoner: or if this fails to act, the last expression given with the force of eloquence and professional skill, may, in doubtful cases, have injurious consequences to the innocent. But give the last word to the accused, and you will do little more than counterbalance the disadvantages inseparable from his situation; while, by this show of humanity and disdain of using the power in your hands, your neutralize the sentiment that would otherwise be felt in his favor. The provision here recommended makes part of the French code of criminal procedure, and it is said to have, in practice, the most beneficial effects." (Liv. Crim. Code, 232, 233.)

Next, it is proposed to define more clearly than it is understood at present, the line of demarcation between the duties of the court and of the jury. Nothing is more common, than for juries in criminal cases to be told that they are the judges of the law as well as of the fact; and as a matter of authority merely, the weight of the highest judicial names in this country may be cited in support of and against this proposition. In this state, the balance of judicial authority is in favor of the principle, that the jury in criminal cases, are bound to take the law from the court, with the exception of the caseof libel, in which, by the constitution, the right is expressly given to the jury to determine both the law and the fact. To put an end, however, to all doubt on the subject, the Commissioners propose to declare the rule, in as clear and comprehensive terms as they have

been able to devise, that on the trial of an indictment for any other offence than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact by the jury; and that although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound nevertheless, to receive as law what is laid down as such by the court. (Sec. 496.) And for the more clear and perfect understanding of this rule, they have added a provision, that in charging the jury, the court shall state to them all such matters of law as it shall think necessary for their information in giving their verdict; and that if it present the facts of the case, in addition to what it shall deem its duty to say, it shall inform the jury that they are the exclusive judges of all ques

tions of fact.

There is also embraced in this portion of the Code, a number of provisions as to the evidence by which an indictment may be sustained,—some of them taken from the existing statutes, others declaratory of the common law, and a few also which are new, not so much in principle as in their application. One or two of them only will be referred to in this report.

It is proposed to abrogate the distinction between principals. in the first and second degree, and between principals and accessaries, in cases of felony. There is no distinction in the punishment, in reference to these several degrees of crime. The on

ly distinction between them is, in the form in which they shall be described and in the order of their trial. By the common law, which in this respect is still in force in this state, the accessary cannot be tried until after the principal is convicted. The moral character of the guilt is the same in both cases, and the legal punishment of both is identical. But by the operation of the rule just referred to, the accessary, though he may be equally guilty with the principal,—nay, even more guilty, for he may have instigated the commission of the crime, is enabled to escape, because, by accident or otherwise, the principal cannot be tried and punished. A case occurred many years ago in Massachusetts, illustrating the practical absurdity of this dis